Unable to agree with Indian Supreme Court that criminalisation of homosexual conduct violates freedom of expression: Singapore High Court

The High Court of Singapore recently dismissed a challenge to Section 377A of the Penal Code Singapore, which criminalises homosexual acts between males..In doing so, the High Court found that it was unable to agree with the finding of the Supreme Court of India in Navtej Singh Johar v. Union of India, that criminalisation of sexual acts between homosexual men violates their right to freedom of expression..Nothing unnatural about it; Supreme Court decriminalises Gay Sex, reads down Section 377 IPC.A batch of applications were filed before the High Court challenging Section 377A on the grounds that it violated Article 9 (right to life and personal liberty), Article 12 (equal protection before the law) and Article 14 (right to freedom of speech and expression) of the Constitution of Singapore..The judgment authored by Judge See Kee Oon notes that Section 377A of the Penal Code was intended to safeguard public morals generally and enable enforcement and prosecution of all forms of gross indecency between males. While dismissing the applications, the Court held,.“The courts should not bear ultimate responsibility for – and indeed, the courts should guard against – the determination of public morality.”.Among the issues framed by the Court were:.(a) whether, applying principles of statutory interpretation to s 377A to ascertain its purpose or object, s 377A only covers the narrow scope of non-penetrative male homosexual activity and is targeted only at commercial male homosexual activity (ie male prostitution);(b) whether the presumption of constitutionality applies to s 377A;(c) whether, for the purposes of Art 12 of the Constitution, thereasonable classification test is met and intelligible differentia exists in s 377A;(d) whether there is a non-derogable right to freedom of expression under Art 14 of the Constitution which encompasses sexual orientation and sexual preference;(e) whether there is sufficient evidence that male homosexuality is caused purely by biological factors, as a result of which sexual orientation is immutable and if so whether this renders s 377A unconstitutional for being in violation of Art 9(1) of the Constitution;(f) whether continued criminalisation of male homosexual activity through the retention of s 377A is absurd or arbitrary and thus inconsistent with Art 9(1) of the Constitution.While dealing with the first issue, the Court held that Section 377A covers all forms of male homosexual activity including penetrative and non-penetrative sex, whether in public or in private and with or without consent. It was not targeted solely at male prostitution when it was enacted in 1938..The provision, which invites a sentence of up to two years in jail, was also held to be not violative of Article 12, which provides for equality before the law. The Court went on to discuss reasonable classification and the doctrine of proportionality with respect to the provision, making reference to the Indian context..The Court referred to the Indian Supreme Court’s decision in Om Kumar v. Union of India, in which it was held that when administrative action is attacked as discriminatory, courts must apply the doctrine of proportionality, and that the reasonable classification test encompasses the doctrine of proportionality. In this background, the Court held,.“…this conception of proportionality should be viewed as distinct from traditional principles of judicial review. While the Indian courts may have adopted such an approach, the Singapore courts have made clear that we continue to subscribe to the traditional principles of judicial review.”High Court of Singapore.Another Indian case referred to in this regard was Anuj Garg and others v. Hotel Association of India and others. However, the High Court held,.“The willingness of the Indian judiciary to readily intervene in reviewing the object of any given legislation may be seen in Anuj Garg...where the court opined at [46] that “[l]egislation should not be only assessed on its proposed aims but rather on the implications and the effects”. This decision was noted and affirmed in the subsequent Indian Supreme Court decision of Navtej.This approach is however at odds with the Court of Appeal’s guidance in Lim Meng Suang CA, articulating in no uncertain terms that the Singapore courts ought not take into consideration extra-legal arguments, regardless of how valid or plausible they may seem to be…”.Coming to the argument that Section 377A violates the right to freedom of expression, the High Court once again disagreed with the Indian Supreme Court. The Court refused to buy the argument that criminalising homosexual acts amounted to a violation of the freedom of expression..“A similar point may be made in addressing Navtej, where the Supreme Court of India ruled that the criminalisation of male homosexual conduct violates, among other rights, the right to freedom of expression. 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.”High Court of Singapore.In Navtej, a Constitution Bench of the Supreme Court of India had read down Section 377 of the Indian Penal Code - also a colonial provision - which criminalised sexual acts between consenting homosexual adults..Section 377: “The Supreme Court spoke for 1.3 billion Indians”, Menaka Guruswamy.The Singapore High Court also went on to find that there is no comprehensive scientific consensus as to whether a person’s sexual orientation is immutable. It noted,.“The court is not the appropriate forum to seek resolution of a scientific issue that remains controversial.”.Further, it was held that the Singapore government’s decision not to proactively enforce Section 377A did not mean that s 377A was absurd or arbitrary..“The manner in which a provision is enforced, even if arbitrary, cannot, without more, result in the provision itself being rendered unconstitutional.”.A challenge to the judgment of the High Court is already in the works, with the applicants already having approached the Supreme Court of Singapore..[Read the judgment]

Unable to agree with Indian Supreme Court that criminalisation of homosexual conduct violates freedom of expression: Singapore High Court

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