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
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with Section 377 Penal Code of Singapore1936, but the latter was repealed.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 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
 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.
Legal Services Authority v. Union of India
, 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
, 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
 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.
, 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
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
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
- 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
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.
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.
- 160 Delhi Law Times 277
- Civil Appeal No. 10972 OF 2013
- AIR 2014 SC 1863.
- Writ Petition (Civil) No 494 Of 2012
- W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016