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The Fate of Two Nations Censuring Homosexuality

In the present Article, the author has reviewed only the issues on violation of Art. 12 and Art. 14, where reference was made and the Singapore court showed dissent to the Indian jurisprudence.

Reinforcing Colonial Anti - Gay Laws in Singapore:

The attempt to repeal a Singapore law prohibiting gay sex has miserably failed, marking a setback for efforts to advocate greater LGBT rights in Asia. Two of the grounds on which the Plaintiff had relied in order to challenge the constitutionality of Section 377A[1] was Art. 12 which administers for the equality clause and Art. 14(1)(a) which states right to freedom of expression, both of which are para materia with Art. 14 and Art. 19(1)(a) of the Indian Constitution. The provision of Art. 12(1) was raised for being under- inclusive and over- inclusive i.e., for not criminalizing female homosexual conduct and on the issue of criminalizing private conduct which however does not harm public morality and decency, respectively. The dilemma lies in the incorporation of the broader test of “proportionality” in the reasonable classification test. The Plaintiff while placing credence over different nations jurisprudence which share similar history and legal system to that of Singapore, highlighted the criticisms of the reasonable classification test as it operates solely as a threshold inquiry, not including “proportionality” as an indicator for testing reasonable classification.

However, in accelerating this dynamism, the Singapore Supreme Court expressed that the judgement delivered by the Indian judiciary to be ill-suited and inaccurate to adopt “proportionality” as a yardstick under the reasonable classification test for the reason that the proportionality approach would as a result lead in reviewing the legitimacy of the objects of a statute which would result in the judiciary acting like a “mini- legislature” and goes to the extent that it will not consider any “extra- legal arguments, regardless of how valid or plausible they may seem to be.” Despite of putting conclusive arguments, overlooking them is a sign of plain irrationality. Moreover, it was ruled out that Section 377A fell outside the sphere of Art. 12, as it did not contain the words “gender”, “sex” and “sexual orientation” and prohibited discrimination of citizens only on grounds relating to religion, race and place of birth.

Likewise, in order to bring freedom of sexual orientation and preferences, subject to such acts being consensual and in private as a defiance to the disputed constitutionality. The Court on the other hand was of the view that the freedom of expression cannot be divorced from the freedom of speech and therefore is limited in nature. The main disagreement arises on the point where wider interpretation has been given to the term “expression” in Art. 19 of the Constitution of India by the Indian Supreme Court. The Singapore Supreme Court dissented with the ratio in Navtej Judgement[2] by holding that, “I am unable to agree with the reasoning of the Indian Supreme Court given that the court appeared to have accepted a wider meaning of what constitutes ‘expression’, extending beyond verbal communication of ideas, opinions or beliefs.”

Conceding with the defendant’s argument, the Court also observed that endowing an expansive interpretation would hold any human conduct and any form of sexual expression, like bestiality, incest, pedophilia, within the ambit of “expression” which, howbeit, would not embrace the morals of the legal system of Singapore and the motive of the Constitutional makers in bestowing such freedom. Additionally, it was also observed that scientific literature had suggested that sexual orientation was decided by both genetic and environmental factors and the Court is not a proper forum to seek a resolution of a scientific issue that remains controversial. In order to preserve its supposedly conservative society, a constant and vigilant conservative approach is taken and the Court system remains distrustful of engaging in judicial activism and veering to far from what it believes is the intent of the Parliament.

A sigh of relief by the Johar’s Judgement in India:

A 19th-century law introduced by the British was annulled by the Indian Supreme Court, holding that constitutional rights cannot be governed by majoritarian views and popular morality. Once the violation of the Fundamental Rights of citizens is recognized by the Court, it will not remain a mute bystander, waiting for a majoritarian government to bring about such a change. In further, the contention that pre-constitutional laws which have been endorsed by the Parliament and used with or without amendment as the will of the people of India are considered to be constitutional was denounced by the Court. Flowing from it is the principle of Transformative Constitutionalism which states the ability of the Constitution to grow and transform with developing times. In addition, it was held that there existed no ‘no intelligible differentia’ as what is natural differ from time to time especially when sex is not only equivalent to the generation of offspring. An artificial dichotomy is formed when innate sexual orientation of a person becomes a ground for discrimination, leading to violation of Art. 14 of the Constitution. Where a legislation segregate individuals on the basis of an intrinsic or core trait, no reasonable classification is formed based on an intelligible differentia.

It was also noted that attaching criminality to Section 377 was unreasonable as it involves private consensual acts which neither disturb public order nor injure public decency or morality. Constraints which are unjustifiable and excessive in nature are absurd and are deemed unconstitutional. It is required that freedom of expression must be preserved against oppressive majoritarian beliefs forced onto marginalized communities. Transgenders have the right to express their identity freely[3] and as a result, Section 377 violates Art. 19 of the Constitution.

Indian judiciary has recognized the need to promote and give precedence to the significance of a legislation rather than plainly assessing an enactment on its purposes which would hold redundant after decades of the statute coming into force as was assessed in Anuj Garg v. Hotel Association of India[4] and further given effect in the Navtej judgement.

Conclusions and Suggestions:

Every individual or community has certain inalienable human rights irrespective of their sexual orientation which is determined by biological phenomena which is natural and inherited. The author believes that it is the need of the hour for the judiciary in Singapore to become aware and realize the rights of the male homosexuals, owing an apology for the delay in ensuring their rights. Upholding Section 377A legitimized prejudice, discrimination, and private homophobic violence since gay men are considered as de facto members of a criminal class. Leading on the Indian example, Singapore should emphasize on the principle of democratic constitutionalism that will pave the way for critical legal changes and reforms. Besides, judiciary has to be guided on the principles of constitutional morality and not by societal conduct. Corelating consensual sexual acts between same sex couples with psychological disorder like necrophilia or the callous act of bestiality is utterly irrational. Singapore should grow into sentinel on the qui vive, offering respect and legal protection to the LGBT community under its Constitution. The recognition of homosexuality is like a pendulum, as it swings in one direction, it is designed to swing back in the other. In a nation that has been submissive to its government, public participation is swelling and people are moving forward to express themselves and their beliefs publicly. Singapore should become a part of the growing global consensus regarding the importance of adopting constitutional instruments in order to protect core values of personhood, autonomy and dignity, especially in the realm of sexual orientation.

References: [1] Ong Ming Johnson v. AG, [2020] SGHC 63. [2] Navtej Sngh Johar v. Union of India, AIR 2018 SC 4321 [3] National Legal Services Authority v. Union of India (2014) 5 SCC 438 [4] (2008) 3 SCC 1 Submitted by:

Simran Khurana,

Amity Law School, Noida

(Images used for representative purpose only)


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