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Courts in India & Singapore on Decriminalization of Consensual Intercourse b/w Homosexuals

A homosexual is defined as “a person who is sexually attracted to people of the same sex and not to people of the opposite sex[i]. It is largely categorised as a crime in societies under laws relating to sodomy. It is considered an act of ‘gross indecency’ and against the order of nature. Many oppose it on the ground of religion and culture while some criticize it as being against science. Such people are often socially ostracized, prevented from living a dignified life and more susceptible to violence and condemnation from the society. Courts in India and Singapore have recently taken major decisions regarding the rights of the LGBTQ [ii]community. Section 377 of the Indian Penal Code, 1860 (“IPC”) corresponds to Sec 377A of the Penal Code of Singapore, 1871. While the Indian Courts chose to decriminalize the said provision and declare it unconstitutional, the Singapore High Court upheld its constitutionality and retained the provision.


INDIA

The Supreme Court of India, in a landmark decision in Navtej Singh Johar & Ors. v. Union of India[iii] made history and took a step towards protection of sexual minorities when it decriminalized the draconian Sec 377 of the IPC, which criminalized carnal intercourse between consenting homosexuals.


Sec 377 of the IPC states:

“Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.” [iv]

The petition was filed in 2016 wherein the Petitioners brought new issues which differed from those the Court had decided in the Naz Foundation case[v] in 2013, wherein a 2 judge bench had infamously upheld the constitutionality of Sec 377 of the IPC.


The Supreme Court in its judgment held Sec 377 of the IPC to be violative of Article 14 of the Indian Constitution which guarantees equality to all and held that the fundamental rights guaranteed by the Constitution shall be equally available to people from the LGBT community. The law, made during the British era, did not meet the criteria of reasonableness under Article 14 and was held to be “manifestly arbitrary[vi]”.


SINGAPORE

In Ong Ming Johnson v. Attorney General [vii], not long after the decision of the Indian Courts, the same issue was taken up in the Court of Appeals in Singapore. Three applications were filed before the Singapore High Court challenging the constitutionality of Sec. 377A of the Singapore Penal Code which criminalized consensual intercourse between homosexuals.


Sec 377A states: “Outrages on decency – Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”[viii]


The parties consented for the applications to be heard together. The issues framed by the Court concerned the following:

· Scope, purpose, and object of Sec 377A and whether it is limited to non-penetrative male homosexual activity and is directed at commercial male homosexual activity (ie. male prostitution);

· the presumption of constitutionality with respect to Sec 377A;

· whether Sec 377A is violative of Art 9(1), Art 12 and Art 14 of the Constitution of Singapore;

· applicability of stare decisis and whether Lim Meng Suang [ix] ought to be departed from.[x]


Rejecting the countless contentions of the Petitioners and considering itself effectively bound by the decision in Lim Meng Suang, the Justice See Kee Oon while deciding the matter, rejected the three applications and upheld the legality of the colonial era Sec 377A, deeming it necessary to curb moral perversion.


ANALYSIS OF THE DECISIONS OF BOTH COURTS

Scope Of Sec 377A

On the first issue, Justice See of Singapore rejected the contentions of the Petitioners that Sec 377A was originally enacted to curb the rampant male prostitution during the British era and did not apply to present times. The Court held that the object was to safeguard public morals and to penalize all forms of indecency between males. He stated that Sec 377A covered “all forms of non-penetrative sexual activity regardless of whether they involve male prostitutes or whether the acts were done in public or in private”[xi].


Taking note that the Indian Courts had recently decriminalized carnal intercourse between consenting males, the Singaporean Court justified that though the genesis of the Sec 377 of the IPC and Sec 377A of the SPC are similar, India is party to certain international conventions to which Singapore is not and also doesn’t follow the principle of judicial activism as is followed in India.


Presumption Of Constitutionality

On the issue of presumption of constitutionality, the Singaporean Court again differed from the Indian Courts. Observing “the willingness of the Indian judiciary to readily intervene in reviewing the object of any given legislation” , the Court held that “the Singapore courts ought not take into consideration extra-legal arguments, regardless of how valid or plausible they may seem to be”. [xii]


According to the Indian view, “legislation should not be only assessed on its proposed aims but rather on the implications and the effects”[xiii]. This decision was subsequently affirmed in the landmark Indian Supreme Court decision of Navtej Singh Johar[xiv].


Violation of Fundamental Rights

The Petitioners contended that there was no rational nexus between the legislative object and intelligible differentia in Sec 377A and that the law was “absurd and arbitrary” and in blatant violation of Art 12 and 14 of the Singaporean Constitution. The Petitioners argued that Sec 377A violates Art 9(1) of the Constitution which states that “No person shall be deprived of his life or personal liberty save in accordance with law.” Since Sec 377A seeks to attribute liability on male homosexuals on the basis of their identity, it was contradictory to Art 9(1).


The Court, rejecting all these contentions emphasized that non – enforcement and constitutionality of a provision were two separate aspects. The purpose of Sec 377A was to “safeguard public morals generally[xv]” by condemning those engaging in homosexual activities Justice See stated that the identity of the person plays no role in the crime. It is the actus reus, that is, performing any sexual act on another male, which constitutes the offence.

The Court, observing that Art 14 of the Indian Constitution and Art 12 of the Singaporean Constitution are “obviously” similar, stated that while the Indian Courts relied on the principle of proportionality, it had interpreted the operation of the principle as to “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”[xvi]. With the development of the rights of LGBT community and the growing acceptance towards them, the Indian Courts held Sec 377 to be unconstitutional.


Justice See also held that there was no evidence to definitively prove that one’s sexual orientation was immutable. The Court also relied on statements of the expert witness who stated that there was no singular theory on homosexuality and lack of consensus even in the scientific community regarding this. Considering these, the Court held that “any controversy is best addressed by the relevant scientific community itself. Ultimately the issue is an extra-legal one that does not come under the proper purview of the courts”.[xvii]


Stare Decisis And Difference In Approaches Of The Courts

The Court showed reluctance in departing from the doctrine of stare decisis and upheld the decision in Lim Meng Suang and considered itself bound by the dictum in the previous case. Further, Justice See observed that the interpretation of the Indian Court was distinct from the traditional principles of judicial review and made clear the willingness of Singaporean Courts to adhere to the traditional principles, thereby deviating from the Indian approach.


The Singaporean Court also referred to Lord Macaulay’s Introductory Report upon the Indian Penal Code, where “unnatural offences” were dealt with and termed as “sexual perversion” between males and thus deemed necessary to be penalized.


CONCLUSION

Homosexuality has been a controversial subject in many parts of the world and countries differ in their approaches and tolerance towards people belonging to the LGBTQ community. With India taking into account the principles of ‘transformative constitution’ and being a harbinger of social change which are consistent with the needs of today’s society, the Singaporean Courts have decidedly and admittedly adhered to a traditional and conservative approach by giving an extremely narrow and technical interpretation to law and construing the provisions in isolation rather than in harmony with the current societal trends. While the Indian and Singaporean Constitutions might have certain similar roots and their laws similar arrangement, the interpretations of the courts are vastly different.


ENDNOTES

[i] Homosexual, Cambridge Dictionary (18th ed. 2011).

[ii] abbreviation for lesbian, gay, bisexual, transgender, and queer (or questioning), Cambridge, supra.

[iii] Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016

[iv] Indian Penal Code, 1860, Sec 377

[v] Suresh Kumar Koushal and another v. NAZ Foundation and others, Civil Appeal No. 10972 of 2013.

[vi] Supra, Navtej Singh Johar.

[vii] Ong Ming Johnson v. Attorney General, [2020] SGHC 63.

[viii] Singapore Penal Code 1871, Sec 377A

[ix] Lim Meng Suang and another v Attorney-General and another, [2014] SGCA 53.

[x] Supra, Ong Ming Johnson, Pg 7.

[xi] Ibid, Pg 36.

[xii] Ibid, Pg 74, para 222-223

[xiii] Anuj Garg and others v Hotel Association of India and others (2008) 3 SCC 1

[xiv] Supra, Navtej Singh Johar.

[xv] Ibid, Pg 61.

[xvi] Ibid, Pg 73.

[xvii] Ibid, Pg 92.


ABOUT THE AUTHOR

This blog has been authored by Kanak Malik who is a Final Year B.A., LL.B. (Hons.) student at ILS Law College, Pune.


[PUBLICATION NO. TLG_BLOG_20_1404]

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