This article is written by Shruti Sharma, from UPES, Dehradun.
“We can only see a short distance ahead, but we can see plenty there needs to be done”, this statement was made by Alan Turing who saved the British intelligence in WW2 but was later forced to eat poisoned apple for being homosexual made the above statement. The present generation knows this eaten apple as the logo of the Apple Inc.
The laws liberalizing Consensual Homosexual sex has been subject to numerous debates all across the globe, specifically in the former British colonies. In the late 19th and early 20th century consensual homosexual sex was criminalized. Both India and Singapore had been former British colonies and were governed by similar pieces of legislation.
These legislations were however more than a century old and naturally should be subject to amendments in the lights of the liberalization human rights movement all around the world. Section 377 of IPC criminalized consensual homosexual sex until in Navtej Johar’s case1 where it was read down.
However, in Singapore criminalization still continues as a part of Section 377A Penal Code on the ground of “outrages indecency”.
It therefore becomes necessary to understand how the two countries stand when it comes to criminalization of Homosexual sex.
Indian jurisprudence in consensual homosexual activities
In India, consensual based homosexual activities have always been considered as taboo on the ground of “sodomy and unnatural sex” Section 377 of IPC criminalizes all sexual intercourse against the order of nature.
In the year 2003, the communist party of India wrote a letter to the Minister of law and Justice demanding to repeal section 3772. Thereafter in 2012, a member of planning commission supported the view of decriminalizing homosexual sex based on consent to ensure equal.
rights for LGBT community3. Law Commission of India in its 172nd report also recommended changes like rape should be gender-neutral which indirectly gave recognition to homosexual.4
In December 2002, Naz Foundation5 filed a PIL challenging section 377 of IPC in Delhi High Court, where for the first time it was read out in 2009 and the court declared that the section is unconstitutional and inconsistent as the fundamental rights of homosexuals are violated. Later, the Supreme Court in the case Suresh Kumar Kaushal v. Naz Foundation6 the court overruled the position laid down by the Delhi High Court and upheld the constitutionality of section 377 also asked the Indian legislature to provide clarity in this matter. At last, in the case of Navtej Singh Johar v Union of India 2018, the court relied upon National Legal Services Authority v. Union of India7 to emphasize the fact of gender identity as denying one’s personality is in breach of fundamental rights. Moreover, the court relied upon the landmark case K.S. Puttaswamy v. Union of India8 that declared the right to privacy as a fundamental right and according to that sex on the consensual basis is also valid.
The main contention and reasoning behind this shift were transforming society and their needs that certainly demanded a change in the law.
Singapore jurisprudence in consensual homosexual activities
In Singapore jurisprudence of consensual homosexual activities are given in the case of, Ong Ming Johnson v Attorney General9 a homosexual man in Singapore namely Mr. Ong Ming Jhonson, challenged the constitutionality of Section 377A and judgment of Lim Meng Suang and another v Attorney general 10. He predominantly contended that the provision violates fundamental rights.
On 30th March 2020, Singapore High Court rejected three petitions and upheld the validity and constitutionality of section 377A of The Penal Code, 1938. This section mainly emphasizes “any male person who in public or private commits any act of gross indecency with another male shall be punished”. Moreover, The High courts reject the plea of the plaintiff made in the parlance of the Indian Supreme court in the landmark case of Navtej Singh’s case.
- Whether section 377A is inconsistent and violates Article 9 of the constitution that ensures the right to life and liberty?
- Whether section 377A ensures equal treatment as has been guaranteed by Article 12 of the constitution?
- Weather criminalization of homosexual activities under section 377A is arbitrary and unjust with the fundamental right of freedom of expression under Article 14?
- Whether the judgment of Lim Meng Suang and another v Attorney general needs to be reconsidered?
- Whether the object and purpose of the section 377A were to target male prostitution?
- Whether the section 377A aims to include penetrative or non- penetrative?
The court stated that homosexuality is purely the act of gross indecency and found that there is no biological factor involved in this. Additionally, the court also rejected the scientific opinion, as it did not establish the immutability of sexual orientation.
The right to equality under Article 12 is not violated as a reasonable classification test that requires intelligible differentia and rational relation justifies the above point by taking other examples of other Singapore laws where the same distinction between men and women has been made. Also, the court found that the sexual relationship between men is unreasonable.
The court drew a demarcating line between Article 19(1)(a) of the Indian constitution by disagreeing with the reasoning of the Supreme Court of India while interpreting “freedom of expression” as they have considered the wider meaning of the expression and not the absolute which is strictly limiting to verbal communication. Therefore, Article 14 is non- derogatory to Section 377A.
The court of appeal upheld the constitutionality of the judgment Lim Meng Suang and another v Attorney General and said that there is no requirement to reconsider, as the above legislative material is fully accepted and valid. There is no mention of any male prostitution act. Further, the court also found it inappropriate to apply vertical stare decisis in Singapore.
The plaintiff relied upon the judgment of Indian court namely Om Kumar v Union of India11 wherein it was observed that the object and purpose of the act should be in unison with the fundamental right. The court took the comprehensive view and stated that the case Lim Meng Suing’s case contemplated all the aspects of historical backgrounds, object, purpose, and critical analysis of Section 377A when it was added in 1938. The general application of male homosexuality is against public morality standards.
The court also made the declaration that the Section tends included both penetrative and non- penetrative acts. Therefore, the court rejected the petition of the plaintiff and the criminalization of homosexual activities between males under Section 377A of Penal Code is still part of the system as was in the norm in the colonial era.
Comparing the paradigm shift in both countries
The judgment delivered by The Singapore High Court is unsatisfactory and egregious for the society at large. This judgment is based on norms and standards that are strictly based on British colonial Administration. The court failed to examine the necessity of the hour to shift from the traditional principle to acknowledge the rights of consensual same-sex intercourse.
Moreover, the High Court dissent from the judgment delivered by the Indian Supreme Court in the case of Navtej Singh Johar v Union of India where India recognized with changing society there is an immediate need to change the law and adapt in a better atmosphere where homosexuals are not deprived. of any of the fundamental rights that include consensual sex.
Moreover, Singapore Court declining a scientific application or biological reasoning and regarding homosexual sex as unreasonable and illogical is not only transgressing with the fundamental rights of citizens but also disrespecting them. On the other hand Indian courts acknowledged the fundamental rights provided in the Indian Constitution.
The comparison of consensual homosexual sex in Indian courts and Singapore Courts shows a significant gap that needs to be filled by Singapore Courts. The law is extremely uncertain and unpredictable and it simultaneously requires to be changed with the change in society, relying upon the object and purpose of the law passed in 1938 is discourteous and in violation of fundamental rights of citizens in today’s era.
It is of paramount importance to consider the need and requirement of homosexuals and also consider them as a part of society by giving them the rights they have by nature. The Singapore High court departed this erogenous judgment by rejecting the plaintiff’s claim. The judgment surely calls for reconsideration, as it is in my view fallacious. We are a part of society and no person should feel unprivileged just because they are biologically different or have a different choice. Consensual homosexual sex has sparked a great debate all over the globe and its recognition is the need of the hour. Homosexuals should have all the rights as other people have because this is what society demands and society is the real lawmaker.
1 AIR (2018) SC 4321
2 http://www.hinduonnet.com/fline/fl2210/stories/20050520002410400.html visited on 30 March 2012
3 http://www.indiatogether.org/2005/dec/hlt-legalise.htm visited on 31 March 2012
4 http://www.ilga.org/news_results.asp?LanguageID=1&FileCategory=44&F ileID=64 visited on 22 March, 20125 (2009) 160 DLT 277
6 (2014) 1 SCC 1
7 (2014) 5 SCC 438
8 (2017) 10 SCC 1
9 (2020) SGHC 63
10 No 1135 of 2012/C
11 2020 SGHC 63
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