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Analysis of Jurisprudential Differences of Indian & Singapore Courts on Consensual Homosexual Sex

Shivansh Soni, Content Writer, Nyayshastram

Introduction

At the time where the other counterparts across the globe including India, have started accepting homosexuality as opposed to the conventional presumption of homosexuality being a mental disorder, Singapore’s court denied striking down Section 377A of the Singapore penal code which punishes any male person who commits an act of “gross indecency” with another male person, whether in public or in private. The plaintiff, in the recently adjudged case Ong Ming Johnson v. Attorney General Case of Singapore Court,[1] argued to strike down a colonial-era law, which criminalises consensual gay sex, being against the fundamental right of bisexual men.

This judgement incited waves across the country owing to the violation of the rights of the LGBT and the fact that they are derogatory to the constitutional rights[2] of the citizens of Singapore. The court in the interpretation of the term expression enshrined as a constitutional right under the article 14(1)(a) applied the rule of ejusdem generis which states,

wherever, there is an enumeration of a list of specific things followed by a generic term, the genus term (here, “expression”) should be interpreted in the context of the specie term(s) (here, “speech”) and not in its widest possible construction,”

thereby denying the inclusion of choosing one’s sexual orientation in the term expression and violating many fundamental principles few among which are-


A. Excessive Interpretation of Judicial Tools- Notwithstanding the settled principle that the term ejusdem generis shall not be used in a way which is derogatory to the fundamental principle of the statutory interpretation.[3] In the ruling, the court maneuvered to uphold the Section 377A constitutional validity and protected from the probable violation of Right to Life[4], by considering this right as a qualified and not an absolute one, which is again unreasonable as this right itself is a collection of other substantive rights which involves several aspects of a person’s life(Movement, Speech, Trade, Sexual Orientation). This open-ended interpretation of the constitutional right may lead it to some abstract/hollow extent.


B. Non-compliance with the International Fundamental Rights- The UNHRC in a landmark decision Toonen v. Australia recognised the right to privacy for the consensual homosexual sex under the International Law, which signifies the discrimination on the basis of sexual orientation shall be prohibited and shall be considered to be a well-grounded precedent, however, in the year 2014, a similar challenge was brought before the court in the case Lim Meng Suang v. Attorney General under which the Supreme Court interpreted the constitutional provision in a very narrow manner, and the decision of Supreme Court follows the same.


A Comparative Analysis of India and Singapore’s Juridical Reasoning

In the year 2018, the Indian Supreme Court in the historic judgement Navtej Singh Johar v. Union of India scrapped Section 377 of the Indian Penal Code (which criminalised homosexuality)[5], stating, “The right to live with dignity has been recognised. Sexual orientation is a natural phenomenon determined by biology and science. Any discrimination on this basis is unconstitutional”, which overturned the order passed in 2013 and upheld the constitutional validity of this section. Disagreeing to the opinion of the Indian Supreme Court on the matter of striking down the provision which criminalised homosexuality, Singapore’s Supreme court, opined that homosexuality is not a form of “expression.

However, unlike Section 377 of the IPC which criminalised the sexual act against the order of nature, the Section 377A of the SPC only criminalises male homosexual from such an act. Therefore, disagreeing with the interpretation of the word “expression” under the section 19 of the Indian Constitution, the Supreme Court of Singapore, asserted on the analogous usage of the word ‘expression’ along with the term ‘speech’, adding further the court stated that the Indian Supreme Court allowed laws to be assessed not just on its aims but also in the law’s implications and effects.

The court while giving an ostensibly pragmatic backing to the order, stated that Section 377A of the SPC “does not criminalise a male for Sexual orientation he has, but for the actus reus consisting of homosexual activity with another man”, the court went on to state that a “heterosexual man” would also be liable at par as a homosexual man, if he commits any act of sexual nature with any other man. This difference in the criminalisation of homosexuality as an orientation and the conduct thereby is absurd and only legible in a theoretic manner. Picking out the flaw from the constitutional text in such an argument renders the judgement detrimental to the interests of the homosexual males.

The Supreme Court of the United States in the case of Lawrence v. Texas penned down, that, “when the act which is criminalised is so closely correlated with the “state-of-being-homosexual”, it resultantly has the effect of defining the very identity as a criminal.”

There is no substantive relevance of a definitive determination on the aspect of immutability to the question of recognition of the fundamental rights. Either way, there is reasonable void in the order of the Supreme court, that is discrimination among the males and females, as the same constitutional restriction of a sexual act is not there for women but only for a specific gender. Therefore, as a critique of the order of the Supreme court, notwithstanding the homosexuality falling anywhere between the gamut of immutability and choice, a more substantial yet unrecognised violation of the fundamental human right which renders the existence of the social stigma allied with the criminalisation of such act, valid.

The order, in turn, gives a legal backing to the pre-empted sense of the only normal case, i.e. heterosexuality. The order, therefore, by stretching the constitutional text to such an extent with the help of judicial tools of interpretation, rendered the fundamental essence of rights inexistent.


Conclusion

The court’s ruling that the de-facto non-enforcement of 377A shall not be considered as a basis to lend the law invalid and that the law serves the purpose of “safeguarding public morality” in turn signifies the implicit acknowledgement of the stigma attached to the homosexual acts. Therefore, the jurisdictional distinction between the Singapore and India are basically of the interpretational extent both these courts have embarked upon; the latter has recognised the rights of homosexuals while the former is still with the orthodox standpoint.

Justice See has left a discriminatory provision in place. He further justified the law stating that Singapore laws should be “reflecting public sentiment and beliefs.” Regardless of their respective social and cultural contexts, while observing legal precedence, judges should not lose sight of human rights norms and international law.

[1] Ong Ming Johnson v Attorney General [2020] SGHC 63 88. [2] Article 14(1)(a), confers upon every citizen the right to freedom of speech and expression, and recognizing one own sexual orientation would be considered under the ambit of the term expression. [3] Sutherland: Statutory Construction, Vol. 2A, 5th Ed., p. 189. [4] Right to life and personal liberty as mentioned in the Article 9(1) of the Constitution. [5] Section 377 of the Indian Penal Code deems sexual intercourse “against the order of nature” as punishable with imprisonment of between 10 years and a life sentence, along with a fine.

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