India, Singapore and Their Hetergenous Response to Homosexuality: An Analysis of Jurisprudential Differences

Pic Credits- https://www.insidehighered.com/

The Homosexuality Debate

Homosexuality refers to sexual attraction towards persons of the same sex, for instance, a male’s sexual propensity for another male.^[1] Traditionally, homosexual intercourse was characterized as illegal to prevent non-procreative sex which resulted in wastage of reproductive seeds. While the 19^th century heralded the decriminalization of homosexuality in Europe, beginning with the Netherlands, it also marked the imposition of anti-homosexual legislation by the British in their colonies.^[2] The objective of this article is to chart the jurisprudential journey of homosexuality in two former British colonies, India and Singapore and to analyze the differences in their approach.

India’s Approach to Homosexuality

Until 2018, homosexuality was a criminal offence under Section 377 of the Indian Penal Code 1861 (‘IPC’). This provision criminalizes ‘carnal intercourse against the order of nature’ whereby only peno-vaginal intercourse was considered ‘natural’. In other words, even consensual intercourse between two males or two females was deemed ‘unnatural’. This archaic law was initially challenged before the Delhi High Court in Naz Foundation v. Govt. of NCT Delhi^[3]and it declared Section 377, in so far as it criminalized homosexuality, violative of right to equality under Article 14, right to life under Article 21 and right to freedom of expression under Article 19(1)(a).^[4] Unfortunately, this progressive step was overruled by the Supreme Court of India (‘SCI’) in Suresh Kumar Koushal v. Naz Foundation and Ors.^[5]

In 2018, this judgment was again challenged before a larger bench of the SCI in Navtej Singh Johar v. Union of India.^[6] The SCI now watered down the meaning of ‘unnatural sex’ under Section 377 to exclude all forms of consensual intercourse (carnal or otherwise) between adults.

Singapore’s Approach to Homosexuality

In 1871, the IPC was implemented pari materia in Singapore by the British Government, hence, Section 377 was imported to Singapore legal system in its original form. In 1938, another Section 377A was introduced in the Singapore Penal Code (‘SPC’) to criminalize ‘gross indecency’ between two men. In 2007, Singapore Parliament revamped SPC whereby Section 377 was struck off, however, Section 377A continued. Thus, while intercourse between two females is legal, gay sex is still a punishable offence. In Lim Meng Suang and Anr. v. Attorney General and Anr.^[7] Section 377A was challenged as violating the right to equality under Article 12 of the Singapore Constitution (which is verbatim Article 14 of the Indian Constitution). However, the High Court of Singapore (‘HCS’) upheld its validity.

In 2018, inspired by the SCI striking down Section 377 of IPC as unconstitutional, gay rights activists in Singapore again challenged Section 377A before the HCS in Ong Ming Johnson v. Attorney General.^[8] The grounds of challenge were widened to include violation of Article 9 (right to life and liberty) and Article 14(1)(a) (right to freedom of speech and expression) under the Singapore Constitution.^[9] However, the HCS reaffirmed its previous judgment, thus, male homosexuality is still a punishable offence in Singapore.

Analysis of the Jurisprudential Differences in Their Approach Towards Homosexuality

In dealing with homosexuality, India and Singapore have followed a different judicial approach with respect to:

Presumption of Constitutionality

Presumption of constitutionality in favour of a legislation is merely an evidentiary rule in India,^[10] that is, the presumption can be thwarted if prima facie violation of constitutional provisions is shown.^[11] In Navtej Singh, the SCI refused to allow presumption of constitutionality in favour of pre-constitutional laws^[12] even if they continued after Indian independence such as Section 377.

In Singapore, the presumption constitutionality is so powerful (for both pre-independence and post-independence laws) that a petitioner has to produce cogent evidence to establish unconstitutionality before the burden passes on to the government. Due to this, the challenge to Section 377A failed in Lim Meng Suang and later in Ong Ming. In the latter judgment, the HCS stated that even after vigorous debates on the validity of Section 377A in 2007, the Parliament retained it,^[13] thus, strengthening the presumption of constitutionality.

Scope of Judicial Review

Judicial review in India is not limited to literal interpretation of a law but extends to its reasonableness, its direct and inevitable effect on the fundamental rights etc. The SCI has adopted purposive and liberal interpretation of fundamental rights to expand their scope, rather than depending on Parliament to amend them with the changing times. Accordingly, the SCI enriched the definition of ‘expression’ under Article 19(1)(a) by relying on ‘Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity’ and held that it includes expression of one’s personhood and sexual identity.^[14]

Even right to life under Article 21 has been interpreted to include right to privacy^[15] and dignified existence.^[16] Convinced that sexual orientation is an intrinsic aspect of one’s life, the SCI in Navtej Singh declared that punishing the LGBTQ community based solely on their sexuality infringes their privacy and dignity guaranteed under Article 21.^[17]

Further, watering down of Section 377 to exclude consensual intercourse between adults also amounts to proactive judicial review.

Unfortunately, the jurisprudence in Singapore restricts judicial review whereby expansion of scope of fundamental rights is the exclusive domain of the Parliament which represents the popular will.^[18] Because of this narrow approach, the HCS has failed to interpret ‘right to life’ as anything more than mere survival. Additionally, unlike Indian jurisprudence, the test of due process has been discarded as ‘too vague’ to examine any State action which infringes this right.^[19]

Therefore, in Ong Ming, the HCS undertook only a literal interpretation of right to equality and freedom of ‘expression’. In unequivocal terms, it held that under Article 14 of Singapore Constitution, ‘expression’ includes only verbal communication,^[20] denying homosexuals the right to express their gender identity.

Constitutional Morality vis-à-vis Social Morality

In both India and Singapore, criminalization of homosexuality was defended on the ground that such a provision enforces majoritarian beliefs and morals in the society. The SCI, however, distinguished social morality from constitutional morality^[21] (which comprises the principles and rights enshrined in the Constitution) and held that in a vibrant democracy such as India, the latter shall trump the former.^[22] The HCS, on the contrary, failed to even consider constitutional morality and upheld social morality in Singapore (which condemns homosexuality) as supreme.

Inclusion of Proportionality principle within the fundamental rights framework

Proportionality principle entails that limitation on a right cannot be more restrictive than is necessary to meet the purpose of such limitation. In India, this principle has been used under Article 14 not just to test reasonableness of classification^[23] but also to determine if any State action is manifestly arbitrary.^[24] Dissenting from Indian view, the HCS has declared that the notion of proportionality was never recognized in Singapore law.^[25] It refused to scrutinize whether criminalization of male homosexuality is disproportionate to the aim of safeguarding public morals. Further, it propounded that right to equality merely prohibits under-inclusiveness or over-inclusiveness; it is not broad enough to check the adequacy of restrictions.

Admission of extra-legal arguments

The SCI and HCS were presented with the argument that sexuality of a person is immutable, a person has no control over it. Both the Courts acknowledged that scientific evidence is not yet conclusive on this point. However, this inconclusiveness was resolved by the SCI in favour of homosexuals by affirming their right of self-determination and after considering opinions of Human Rights Committee of the United Nations and J.S. Verma Committee.^[26]

In contrast, the HCS refused to consider either any scientific evidence or other extra-legal materials^[27] on the ground that court is not the right forum for debate on immutability of homosexuality. Agreeably, the Courts should not undertake scientific analysis, however, the HCS should have judicially noted the growing consensus in other jurisdictions on the homosexuals’ right to self-determination, even if such determination is conditioned by externalities like the environment.

Conclusion

Singapore and India, both common law jurisdictions, dissent from each other as far as legality of homosexuality is considered. This is due to differences inherent in their jurisprudence. While Indian courts have allowed themselves wider power of judicial review, Singapore Courts have unduly submitted to Parliamentary wisdom. Fundamental Rights in India have retained relevance in modern times due to innovative interpretation by the judiciary (often criticized as judicial activism). At the same time, strictly literal interpretation has hindered the blossoming of rights in Singapore’s Constitution.

However, merely because homosexuality is now legal in India, it would be wrong to contend that Indian society is more receptive of homosexuals than Singapore’s. Rather, the decriminalization of homosexuality in India can be attributed largely to the maturity of its judicial system, which has rightly regarded law as an instrument of social change. On the contrary, the jurisprudence of Singapore has succumbed to social morality, instead of reforming it. The Prime Minister of Singapore has repeatedly assured the gay community that Section 377A will not be enforced, but it has not been repealed either. This approach threatens to subsume minority rights, which does not fare well for a democratic set up.

 

(This post has been authored by Rupal Jaiswal, a 2020 batch graduate in BA LLB (Hons.) from Symbiosis Law School, Pune and a future joiner at Cyril Amarchand Mangaldas) 

References

1. Navtej Singh Jauhar v Union of India, AIR 2018 SC 4321, [¶143]; Fernando Luiz Cardoso and Dennis Werner, ‘Homosexuality’, Encyclopedia of Sex and Gender (2003), 204. ↑

2. Enze Han & Joseph O’Mahone, ‘British Colonialism and the Criminalization of Homosexuality’, 27 (2) Cambridge Review of  International Affairs 268 (2014). ↑

3. (2010) Cri LJ 94. ↑

4. The Constitution of India, 1950, Part III. ↑

5. (2014) 1 SCC 1. ↑

6. Navtej (n 1). ↑

7.  [2015] 1 SLR 26. ↑

8. [2020] SGHC 63. ↑

9. Constitution of the Republic of Singapore, Act 8/65, 9 August 1965. ↑

10. Chiranjit Lal Choudhary v Union of India [1951] SCJ 29. ↑

11. Saurabh Chaudri v Union of India, (2003) 11 SCC 146. ↑

12. Navtej (n 1) [¶ 91, 92]. ↑

13. Ong Ming (n 8) [¶ 152, 154]. ↑

14. Navtej (n 1) [¶16.1, 87]. ↑

15. K.S. Puttaswamy v Union of India, (2019) 1 SCC 1. ↑

16. Francis Coralie Mullin v Administrator, Union Territory of Delhi & Ors., 1981 SCC (1) 608. ↑

17. Navtej (n 1), [¶56]. ↑

18. Rajeevan Edakalavan v Public Prosecutor, [1998] 1 SLR(R) 10. ↑

19. Yong Vui Kong v Public Prosecutor, [2010] 3 SLR 489 (CA, Singapore). ↑

20. Ong Ming (n 8) [¶246]. ↑

21. Government of NCT of Delhi v Union of India, (2018) 8 SCC 501. ↑

22. Navtej (n 1) [¶121, 122]. ↑

23. Dudgeon v United Kingdom, (1981) 4 EHRR 149; Anuj Garg v Hotel Association of India and Ors. (2008) 3 SCC 1. ↑

24. Shayara Bano v Union of India, (2017) 9 SCC 1. ↑

25. Chee Siok Chin v Minister for Home Affairs, [2006] 1 SLR(R) 582. ↑

26. Navtej (n 1) [¶15.1]. ↑

27. Ong Ming (n 8) [¶277]. ↑