Supreme Court of Mauritius decriminalises sodomy between two consenting adult males

Supreme Court of Mauritius: In a historic decision, the bench of D. Chan Kan Cheong and K.D. Gunesh Balaghee, JJ., declared Section 250(1) of Criminal Code Act, 1838, as unconstitutional as it violates Section 16 of the Constitution of Mauritius in so far as it prohibits consensual acts of sodomy between two consenting adult males in private and should accordingly be read so as to exclude such consensual acts from the ambit of Section 250(1).

Background and Contentions: The plaintiff in the instant case is a gay man and is also actively involved with Collectiff-Arc-en-Ciel (CAEC), an NGO which campaigns against homophobia and discrimination on basis of sexual orientation.

The plaintiff contended that Section 250¹ of the Criminal Code Act, 1838 which criminalises sodomy² (anal sex) between consenting male adults in private, is unconstitutional including Section 16 of the Constitution which was enumerated to protect the Mauritians from discrimination.

The plaintiff further stated that he is living with his partner in a homosexual relationship for 10 years. Although the sexual intimacy between him and his partner are consensual and conducted in private, yet he lives consistently in the fear of being arrested and prosecuted. Section 250(1) dangles over the plaintiff like Sword of Damocles as criminalises sex between men.

The plaintiff pointed out that the impugned provision allows the police to enter his house on the mere suspicion of 2 men engaging in consensual sexual intercourse in private. The plaintiff expressed his apprehension that the impugned provision allows the police to investigate his intimate private life in the most humiliating, intrusive manner.

Per contra, the State contended that the impugned penal provision does not breach the Constitution and that the State is sensitive towards the concerns and representations made by the LGBTQ+ community in the country. The State further contended that it has enacted several laws in order to protect the LGBTQ+ community from discrimination.

The State further contended that allowing consensual sexual acts between same sex couples is in its agenda; however, given the sensitive nature of the issue and the delicate nature Mauritius’ socio-religious fabric, the same can be introduced in the Parliament only when the conditions are favourable.

Issues Framed:

1. Should the Court interpret the word “sex” in S. 16 of the Constitution as including “sexual orientation”?

2. Is S. 250(1) of the Criminal Code discriminatory on the ground sexual orientation in breach of S. 16 of the Constitution?

Court’s Assessment: Pursuing the matter, the Court pointed out that the crux of the case is that whether S. 250(1) of the Criminal Code violates Section 16 of the Constitution. In order to resolve the crux question, the Court formulated the afore-stated issues which were answered as follows-

Issue 1:

• The Court took note of several foreign courts’ judicial decisions on the same issue which included 5-Judge Constitution Bench decision rendered by the Supreme Court of India in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, wherein it held Section 377 of Penal Code, 1860 to be unconstitutional insofar it criminalised gay sex between consenting adults.

• The Court noted that Constitution of Mauritius does not define “sex” and generally keeping in mind the dictionary meaning, the word “sex” denotes “gender”. It was further noted that in Navtej (supra) the Supreme Court of India interpreted that Article 15 of the Constitution of India within its meaning encompasses “sexual orientation”. Similarly relevant precedents of UNHRC, Supreme Court of Belize etc. also interpret “sexual orientation” as included within the ambit of “sex”.

• The Court pointed out that even if foreign precedents are not binding on the Mauritian legal sphere, but the Court can obtain relevant persuasive guidance from the same. The Court noted that Section 16 of the Constitution does not state sexual orientation as one of the grounds for discrimination, however, the plaintiff had vehemently argued that “sex” should be interpreted as “sexual orientation”.

• The Court further noted the accession of Mauritius to the ICCPR and thus found force in the plaintiff’s contention that Mauritius in acceding to ICCPR has also accepted to adhere to international norms and standards regarding fundamental rights and freedoms as enshrined in the ICCPR, which also includes interpretation of “sex” as including “sexual orientation”. The Court further stated that Constitution being a living document, must be given generous and purposive interpretation especially the provisions concerning fundamental rights.

• In the light of the relevant foreign and international judicial precedents and the need to adopt a generous and purposive interpretation of Section 16 of the Constitution which enshrines a fundamental right, the Court thus held that word “Sex” in Section 16 also includes “Sexual Orientation”.

Issue 2:

• The Court took note of plaintiff’s contention that Section 250 was not introduced in Mauritius to reflect any indigenous Mauritian values but was inherited as part of the country’s colonial history. England itself decriminalised private consensual homosexual acts in 1967 but Section 250 of the Criminal Code remained even when Mauritius became independent in 1968. The Court also pointed out sodomy under Section 250(1) applied not only to gay men but also to heterosexual men which makes the provision ostensibly neutral as it is not directed specifically against gay men.

• The Court also took note of the negative impact of Section 250(1) on mental health of the Mauritian LGBTQ community as highlighted by the plaintiff and CAEC. The Court accepted the plaintiff’s contention that his sexual orientation is natural and innate in him and cannot be altered.

• The Court thus found that Section 250(1) of the Criminal Code is although ostensibly neutral, is discriminatory in effect against the plaintiff on the ground of his sexual orientation; thus, it is violative of Section 16 of the Constitution. The impugned provision in effect denies the plaintiff, as a homosexual, the right to sexual expression and gratification in only way available to him whereas heterosexual men are permitted the right to sexual expression in way that is natural to them. Furthermore, the impugned provision has the effect of criminalising the plaintiff’s innate natural sexual orientation as Section 250(1) in effect forbids only mode of sexual expression available to him.

• The Court further stated that there must be serious before the State can justifiably interfere with the manner in which homosexual men choose to have consensual sex in private. The Court further pointed out that Mauritius is a secular State and any interference from the State must follow a legitimate purpose. The Court pointed out that what the plaintiff seeks in this case, has been already accepted as an integral part of fundamental human rights in many countries. Whereas the State has not shown that governmental interest in circumscribing personal choice is legitimate or urgent.

Finding: With the afore-stated assessment, the Court found that Section 250(1) of Criminal Code Act, 1838 is discriminatory in effect and breaches Section 16 of the Constitution inasmuch as it criminalises the only natural way for him and other homosexual men to have sexual intercourse.

[Abdool Ridwan Firaas Ah Seek v. State of Mauritius, 2023 SCC OnLine UKPC 1, decided on 04-10-2023]