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UPHOLDING THE CRIMINALISATION OF HOMOSEXUALITY

Updated: Aug 22

A Critique of Singapore SC’s Victorian Era Judgement in the light of Navtej Singh Johar vs. Union of India


The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation. -Justice DY Chandrachud


Introduction

In a world where many countries seek to break the restrictive shackles of the term 'gender,' the decision of the Singapore SC upholding criminalisation of homosexuality, comes as nothing less than a tragedy for the age-old fight for the rights of the LGBTQ+ people. The High Court of Singapore (30th of March 2020) in Ong Ming Johnson v. Attorney General (Ong Ming Case), upheld the constitutionality of Section 377A of the Singapore Penal Code, which criminalises consensual sexual intercourse between men. This ruling follows the Singapore LGBTQ rights campaign gathering traction after a controversial law was struck down by India's Supreme Court in 2018. Through this article the author aims to analyse the jurisprudential differences between Indian and Singaporean Courts on Consensual Homosexual Activities and to present a critique of the Singapore SC judgement upholding criminalisation of homosexuality in the light of Navtej Singh Johar’s Case, keeping the human rights perspective in mind.

Background

Broadly, the opposition to Section 377A was raised on many points, including the right to liberty, freedom of speech and the right to life. The Court ruled that Section 377A of the Singaporean Penal Code does not contravene Sections 9(1), 12(1) and 14 of the Constitution, and is thus lawful. The bench presided over by Justice See Kee Oon further noted that Section 377A is significant as it seeks to defend public morality. The approach to the right to freedom by the Singapore Court is highly controversial because it upholds the unequal prosecution of gay people on the basis of an arbitrary legislative classification test. The Judgement atrociously negated the fundamental human rights principles that are intrinsic to every citizen of a nation. Hence, it is important to analyse the judgement of the Singapore Court in the light of the Indian Supreme Court’s judgement, in order to understand the whole matter from a broader perspective and to facilitate a comparative analysis of the issue.

In the seminal case of Navtej Singh Johar v. Union of India (hereinafter "Navtej"), the Indian Supreme Court's five-judge constitutional bench struck down the criminalization of homosexual relations under Section 377 of the Indian Penal Code (IPC). Not long after this decision, three Originating Summons were brought before the High Court of the Republic of Singapore by three homosexual men, who were heard together on the agreement of the parties in Ong Ming case challenging the constitutionality of Section 377A of the Singapore Penal Code. However, it is also important to know that the Court of Appeal had previously upheld Section 377A in the case of Lim Meng Suang and another v Attorney General, because it was meant to address public morality.

It would not be unfair to claim that the Singapore High Court's rationale is very similar to the justification of the Indian Supreme Court in the infamous Suresh Koushal v. Naz Foundation case wherein the Apex Court upheld Section 377 of the Indian Penal Code, which criminalized homosexual activities between two consenting adults. In the said case, Among other issues, a bench of two judges declared that the LGBT people consisted of just a "minuscule fraction of the overall population" and that the simple evidence that police misused the powers under Section 377 did not represent the Act's constitutional validity. Therefore, it was held that Section 377 IPC applied irrespective of age and consent and did not criminalize a particular individual or gender or sexuality.

Critical Analysis of the Jurisprudential Differences between Indian and Singaporean Courts :

1. The first jurisprudential difference arises on the differential interpretation of Article 12 of the Penal Code of Singapore, by the Singaporean Court and Article 14 of the Indian Constitution, by the Indian Courts. Both the provisions provide the “Equality Clause in their respective jurisdictions :

In Navtej, it was held by the Supreme Court that Section 377 of IPC violated Article 14. It lacked a reasonable nexus for the purpose of protecting women and children since the non-consensual acts criminalized under Section 377 of the IPC were already designated as criminal offences under Section 375 of the IPC and the Protection of Children from Sexual Offences Act. On the contrary, the inclusion in its present form of Section 377 of the IPC has resulted in a distasteful and offensive ripple impact. Only 'consensual actions,' which are neither detrimental to children nor women and are committed by a certain class of persons (LGBTs) having certain intrinsic characteristics identified by their sexuality and individuality, have been attacked wrongly. This bigotry and unequal representation of the LGBT population as a distinct class of people is illegal because it violates Article 14 of the Constitution.

However, the Singapore Court in Ong Ming, held that Section 377A was not in breach of Art. 12 of its Constitution, as it was consistent with both limbs of the reasonable classification test, i.e. there was sufficient intelligible differentia and the object of Section 377A was met. While, In the present case, the difference was found not to be unreasonable, as it is targeted at homosexual acts between males, as opposed to sexual acts between males and females. Furthermore, The Court found it to be neither under-inclusive nor over-exclusive.

Ceding to Mainstream Opinion at the Expense of Minorities

While the Indian Supreme Court in Navtej, emphasized that the fundamental freedoms cannot be determined by mainstream views and common morals, the Singaporean Court held otherwise. It refused to interpret Art. 12(1) in a manner contrary to Parliament's dictum although it undermines the object behind Art. 12(1), i.e. preventing oppression by a majority.The Singaporean Law guarantees its citizens the equal protection of the law under Article 12(1). However, it has failed to protect this fundamental principle of law by ceding to mainstream opinion at the expense of the views of the minorities.

2. The second Jurisprudential difference arises in the interpretation of the “Right to Freedom of Speech and Expression” clause by both the courts :

In Navtej, The court also held that Section 377 represents an unreasonable restriction on the right to freedom of expression since consensual carnal intercourse in private "does not harm public decency or morality in any way" and, if it remained in the law books, that will have a chilling impact and would violate the right to privacy under Art. 19(1)(a)”. The Court affirmed that "intimacy between consenting same-sex adults goes beyond the State's legitimate interests" and sodomy laws violate the right to freedom under Sections 14 and 15 of the Constitution by restricting the sexual identity of a section of the population. In addition, the Court has relied on its decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India to reaffirm the right of a person to "choose a life partner of his / her choosing", is a facet of individual freedom.

In Ong Ming, The Court dismissed the argument to interpret 'sexual expression' as a part of freedom of speech. The Court held that such broader meaning would extend it beyond verbal communication which could lead to absurd results. The court argued that if such broader meaning were permitted then Art. 14(1)(a) could also be argued as a form of sexual expression in future sexual offences such as paedophilia. Such reasoning shows the fallacy of slippery slope by claiming that the inclusion of the right of two consenting males to sexual expression will lead to the inclusion of those who commit offences such as paedophilia.

The Way Forward

The Singaporean Supreme Court’s decision is farcical, arbitrary and in contravention to human rights principles. While testing the validity of the legislation, the Court adopted the traditional principles of judicial review and did not look into the implications and effects of the law. The LGBTQ community has been a victim of predominant morality (Since the Victorian Era ) prevalent at the time when the Penal Code was drafted. While we cannot undo the wrong that has been done, but history can definitely be stopped from repeating itself. Sexual Orientation is integral to the identity of an individual and inherent to the dignity of that individual, it forms the core of his/her Right to Privacy. Denying Self-expression is the most brutal form of curbing the right to freedom of an individual. Justice Indu Malhotra rightly said,Apologies would be meaningless unless we act fast and stop decades of future tussle and legitimise those relationships instantly”. Constitutions need to be transformative in contemporary times, in the sense that their interpretation should not be restricted to the literal meaning of words but instead, their construction should be meaningful and in consonance with the changing times.

Title Image Source: gaychristianafrica


The article has been written by Hriti Parekh, who is a second-year undergraduate law student at Hidayatullah National Law University (HNLU), Raipur . I have a keen interest in International Law as well as Human and Animal Rights.

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