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Analysis of Jurisprudential difference between Indian and Singapore courts on Consensual Homosexual Sex

Homosexuality as a crime has been defined in Section 377 of Indian Penal Code, 1860. In 2018 Supreme Court of India decriminalized homosexuality on the ground that it violates Article 14, Article15 and Article 21 of Indian Constitution however section 377A Penal Code of Singapore, 1936 criminalizes consensual sex between men.

Introduction
Homosexual act is deemed to be against the order of nature or in other words act of gross indecency. Homosexuality has been illegal in India and their criminalization has been the norm since colonial era by the British ruler as they codified the law prohibiting carnal intercourse against the order of nature with any man, woman or animal.

Section 377 of Indian Penal Code was a law which endeavored to criminalize homosexual activity and defined as an unnatural offence. Prior to 2007, section 377 of Indian Penal code, 1860 was pari materia with Section 377 Penal Code of Singapore1936, but the latter was repealed. However Section 377A Penal Code of Singapore criminalizes consensual sex between men on the ground of safeguarding public morality.

Section 377 of Indian Penal Code, states that 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. This section has been criticized for discriminating against and disproportionally affecting the LGBT community.

In Naz Foundation v. Govt. of NCT of Delhi
[1] Delhi High Court held that treating consensual homosexual act between adults as a crime is a violation of fundamental rights granted by Indian Constitution and decriminalizes section 377 of IPC. However in Suresh Kumar Koushal and another v. NAZ Foundation and others[2] Supreme Court overruled the decision given by Delhi High Court and upheld the constitutionality of Section 377 on the ground that right to privacy will not cover homosexual act as miniscule minority citizens are negatively impacted by Section 377.

National Legal Services Authority v. Union of India[3], was the case regarding the rights of transgender, court ruled that there could be no discrimination on the basis of sexual orientation and gender identity.

Judgement given in case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors[4], was interpreted as paving the way for the eventual decriminalisation of homosexuality in India. In 2018 five- judge constitutional bench of Supreme Court in Navtej Singh Johar v. Union of India[5] decriminalised all consensual sex among adults, including homosexual sex. Since it violates:
  • Article 14 of the constitution (Right to Equality before Law) as it was vague about carnal intercourse against the order of nature and was not supported by any valid intelligible differentia and rational nexus. It was held that there is no intelligible differentia between people engage in natural intercourse and those who engage in carnal intercourse against the order of nature.
     
  • Article 15 prohibits discrimination on the ground of sex. Supreme Court expanded the prohibition ground and stated that sex will include both biological sex and sexual orientation .Therefore, Section 377 was held to be discriminatory under Article 15.
     
  • Article 19 provides citizens freedom of speech and expression. Supreme Court noted that public decency and morality was not harmed by consensual carnal intercourse among adults in a private space.
     
  • Article 21 provide for protection of life and personal liberty. Supreme Court interpreted that article 21 include right to live with dignity and right to privacy. Therefore section 377 is violates article 21. In this case Supreme Court of India decriminalises Section 377 of Indian Penal Code.

Section 377A Penal Code of Singapore works in the same as Section 377 of Indian Penal Code did once for India. Section 377A states that Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine. In Tan Eng Hong v Attorney-General Singapore High Court retained Section 377A and rejected claims of its unconstitutionality.

Tan appealed the ruling to the Court of Appeal and his case was joined with Lim Meng Suang and another v. Attorney-General , the court held that section 377A was consistent with Article 9 of the Constitution of the Republic of Singapore as it provide to protect against unlawful imprisonment, and that it was consistent with Article 12(guarantees to all persons equality before the law and equal protection of the law)

The Article also identifies four forbidden classifications as it only mentions religion, race and place of birth not gender, sexual orientation, or sex. Not long after the judgment of of Navtej Singh Johar v. Union of India three homosexual men filed three Summons before the High Court of the Republic of Singapore which were heard together with the consent of the parties in Ong Ming Johnson v. Attorney General challenging the constitutionality of section 377A of the Penal Code of Singapore on Article 9 (Right to Life and Personal Liberty), Article 12 (Equality before the Law) and Article 14 (Freedom of Expression) of the Constitution of the Republic of Singapore. As on the ground of challenging the constitutionality the plaintiff relies on:
  • Article12 which is pari materia with Article 14 of Indian Constitution. The argument was raised by the plaintiff for not criminalizing female homosexual conduct and criminalizing private conduct which does not harm public morality. On comparison, with Indian judgment made in Om Kumar v Union of India where Supreme Court of India accepted the proportionality doctrine but the Singapore Court stated that they continue to adopt the traditional principles of judicial review.
     
  • Article 14(1)(a) which is pari materia with article 19(1)(a) of Indian Constitution which guarantee freedom of expression. The plaintiff argued that the freedom of speech and expression include sexual expression i.e. sexual intimacy also. Singapore Court held that the term expression cannot be interpreted to include non-verbal communication, it only include verbal communication of an idea, opinion or belief. To support his proposition plaintiff produced Navtej Singh Johar v. Union of India judgment but the Singapore High Court stated that they are unable to agree with the reasoning of Indian Supreme Court as the court have accepted a wider meaning of what constitutes ‘expression’, extending beyond verbal communication of ideas, opinions or beliefs.
     
  • Article 9 which is pari materia with Article 21 of Indian Constitution, which guarantee freedom of life and personal liberty. Plaintiff argued that Section 377A violates Constitution as it seeks to attach criminal liability to male homosexuals on account of their ingrained identity or sexual orientation. Court held that Section 377A did not make male homosexual a potential offender on account of his homosexual orientation. The male person in question identifies himself as bisexual, heterosexual or homosexual, is completely irrelevant.
In this case Singapore Court criminalizes section 377A and held that it will not be enforced but also it will not be repealed. The Court stated that section 377A has become redundant as it reflected public morality and in any event, it would be enforced in respect of offences against minors.

Conclusion
Such unreasonable criminalization of Section 377A in Singapore Penal Code handicaps the rights of male homosexual because their expression of autonomy and self- determination through their sexuality is not permitted. To upheld complete justice and efficiently discharge its function the judiciary in Singapore need to the guard on the qui vive, rather than inhibiting to the traditional notions of judicial review.

End-Notes:
  1. 160 Delhi Law Times 277
  2. Civil Appeal No. 10972 OF 2013
  3. AIR 2014 SC 1863.
  4. Writ Petition (Civil) No 494 Of 2012
  5. W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016

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