Jurisprudential Differences between India & Singapore on Consensual Homosexual Sex

When it comes to providing rights to homosexuals, sadly, the world has been divided. This is primarily because of the spilt opinions that exist in society. The problem with this is that these opinions affect the judgments made in the courts and laws passed in parliament. When an opinion takes the form of law and refuses to recognize what is right and wrong, society will be divided.

The date goes back to the British Colonial era of the 19th Century when a Penal Code was drafted by the authorities at that time criminalizing certain activities related to sex which were tagged as ‘unnatural offences’ or more so the ‘acts against nature’. This particular narrative of criminalizing certain sexual acts even though has not explicitly mentioned the homosexuals, it has been interpreted so in a way targeting the homosexuals.

The provision has been portrayed in the penal codes of many commonwealth nations like Singapore, Pakistan, Myanmar, Bangladesh and so forth. This article focuses on two of the commonwealth nations who adapted the provisions in their penal code even after gaining independence from the British rule they are India and Singapore. India, however, has been a nation who has evolved and decriminalized the Section of Penal Code explicitly mentioning the provision for the criminalization of those unnatural offences. While Singapore still has the provision in force and still stands by the decision of not decriminalizing Section 377.

Section 377 in India

6th September 2018 is a historic date for India because on this day India became a nation where homosexuality was legalized as the Supreme Court made a landmark decision in the case of Navtej Singh Johar v. Union of India[1] for gay individuals all over India declaring sexual intercourse between two homosexuals as legal. The Supreme Court of India decriminalized consensual sexual intercourse between persons of the same sex and read down the infamous Section 377 of the Indian Penal Code. The court in the case recognized sexual orientation as a ‘natural and inherent’ biological phenomenon and not a matter of choice. Section 377 in India[2] had previously stated that it was a punishable act to have intercourse with any man, woman or animals against the order of nature, meaning homosexuality, bisexuality or anything other than what was natural were all outlawed.

Section 377 A in Singapore

The Singapore Penal Code which has been influenced by the Indian Penal Code has criminalized sex between two consenting males with a jail term of up to 2 years. Section 377 A[3] in the penal code has been criticized by many people as it is an injustice faced by a group of minority males in Singapore. This particular law has social implications that exceed far beyond just restricting them from having sex as this law is criticized as being unfair as it only criminalizes gay men and treats them as an outcast of a society which is wrong and biased. The norm of the social perception that these homosexuals sexual orientation is dictated by social influences is completely false. And despite countless petitions being filed to repeal section 377 A of the penal code, the court has always stood by the decision of not repealing it.

Jurisprudential Differences

Even though India and Singapore are both former British colonies they have developed politically and culturally in a very different setting through the ages. Laws and social change always need people on the ground to continue the effort to go through the legislature or courts on any matter. Both the countries have evolved very distinctly on jurisprudential stands relating to homosexuals consenting sex which is evident from the fact that in one country it is decriminalized and the other still criminalizes it. The jurisprudential differences can be analyzed only after individually studying the past court decisions which have been laid down in the courts of both Singapore and India. The article has further analyzed it.

Indian Courts on Consensual Homosexual sex

Homosexual sex had carried a 10 years jail sentence in India. It had nonetheless been decriminalized in 2009 in the case of Naz Foundation v. Govt. of NCT of Delhi[4], wherein it was held that consensual homosexual sex between two adults should not be treated as a crime as this is a violation of fundamental rights which has been protected by India’s Constitution. The verdict that was given in the case by Delhi High Court, resulted in the decriminalization of homosexual acts involving consenting adults throughout India. However, in 2013 in the case of Suresh Kumar Koushal vs. Naz Foundation[5], Supreme Court of India overturned the judgment of 2009 and reinstated homosexual sex as a criminal act which was a disappointing judgment for the entire LGBTQ community in India. However, in 2018, India for one more time saw a ray of hope in when another case overturned the judgment of 2013. The case was Navtej Singh Johar v. Union of India[6] wherein it was held criminalization of consenting sex between two homosexuals would be a violation of their constitutionally guaranteed rights. It was a unanimous decision of the constitutional bench which then changed the history of India.

Singapore Courts on Consensual Homosexual sex

On March 30th 2020, the Supreme Court of Singapore passed judgment on the case of Ong Ming Johnson v AttorneyGeneral[7] filed by Dr Roy Tang, Mr Johnson Ong Ming and Mr Bryan Choong in a three separate legal appeal, challenging the constitutionality of Section 377 A of the Singapore Penal Code which criminalizes consensual homosexual sex.

The court dismissed the challenges and ruled that section 377 A of the penal code is not unconstitutional and that it does not violate the Equality provision of the Constitution of Singapore[8] which was a disappointing judgment. Justice See Kee Oon passed his decision in the court which was held in a 105 page written judgment that also noted a previous decision by the Court of Appeal in 2014 in the case of Mr Lim Meng Suang and Mr Kenneth Chee[9]. Justice See held that the case of 2014 was still binding in the current case of Ong Ming Johnson as well. The battle against Section 377 A started from 2010 since the case of Tan Eng Hong vAttorneyGeneral[10] wherein a gay male was charged for having oral intercourse with another consenting adult man. 

Differing opinions

If we look at India, the courts have respected the jurisprudential justification of consensual, voluntary sexual act which in no way harms a third party and the act of consent and voluntariness between two parties is well enough to fall under individual autonomy. And merely the fact that majority consider something to be wrong doesn’t give a state an authority to decriminalize an act and deem it immoral. Indian Courts have respected this jurisprudential standpoint in cases. A case in point is the verdict given by Five justices in the Navtej Singh Johar case has been very much expansive of constitutional values related to inclusion, dignity, democracy, right to be fearless to emotional make claims about compassion, respect, empathy, hope, and love.

The main Jurisprudential difference that has existed in deciding the decriminalization of consenting homosexual sex in India and Singapore is the difference in how morals and values are placed in societies of each country and how the courts have interpreted it. The Singapore government in the parliament has advocated that Homosexuals are free to lead their lives and free to pursue their social activities, but there are restraints and the Singapore government does not approve of homosexuals actively promoting their lifestyle to others or settling the tone for mainstream society. Their view is that the majority of Singaporeans have unequivocally rejected the cry to decriminalize homosexuality due to the overwhelming sentiments of not preparing to compromise their conservative family values by opening up to alternative sexual behaviour nor allowing to permeate across time-honoured boundaries into the conventional family sanctity.

Conclusion

Section 377 A in Singapore is a relic of the colonial past which is highly discriminatory and highly demeaning. It has been struck down in many commonwealth countries in the past with India being the most recent. Singapore has a set conservative mindset on how homosexuals have to be treated and hence is an issue that would not be resolved through just one repeal, however, taking the first step is necessary for this long journey of the fight for equality, respect and freedom. Thus, for democracy to rule, the people of a nation have to be treated equally so that minorities and marginalized groups of society have their say.


[1] Navtej Singh Johar & Ors v. Union of India, Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.

[2] §377, Indian Penal Code, (1860). [now repealed]

[3] §377 A, Singapore Penal Code, (1871).

[4] Naz Foundation v. Govt. of NCT of Delhi, et al. (2009) DLT 27 [over-ruled].

[5] Suresh Kumar Koushal vs. Naz Foundation, Civil Appeal No. 10972 OF 2013 [over-ruled].

[6] Navtej Singh Johar & Ors v. Union of India, Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016.

[7] Ong Ming Johnson v AttorneyGeneral and other matters, [2020] SGHC 63.

[8] Art. 12, Constitution of the Republic of Singapore (1965).

[9] Lim Meng Suang v Attorney-General, [2015] 1 SLR 26.

[10] Tan Eng Hong vAttorneyGeneral. [2012] SGCA 45.

Prashamsa Ghimire from National Law College, Tribhuwan University, Nepal.

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