Upholding Criminalization Of Homosexuality: Singapore S.C. Victorian Era Judgement In Light Of Indian S.C In Navtej Singh Johar v. U.O.I

Author – Vinhu Krishnatam Choubey

NALSAR University of Law, Hyderabad.

The paper attempts to critique a recent judgment rendered by the supreme court of Singapore
which validated the existence of S.337A, a penal provision of law that criminalized male
homosexuality. India in, it’s one of its heavily celebrated landmark judgments, Navtej V. U.O.I,
in the year 2018, struck down the criminalization of homosexuality by striking down the major
parts of S. 377 of the penal code of India which criminalized it. The author contrasts the 2020
judgment of the Singapore SC against the backdrop of the apex court decision in 2018 and will
further state several grounds on how such a decision, in the context of a common-law system, is
violative of major international treaties and conventions and has no legal rationale.

Singapore is similar to India in multifarious contexts. For instance, both the countries were
originally under the administrative and executive control of the monarchical British Empire.
India, as a country, clutched Independence from the British in 1947, Singapore became a free
nation in the year of 1965. Both democratic countries have a parliamentary republic system of
governance possessing the same judicial structure and being a constitutive part of the common-
law system. This piece of work concerns itself with a decision rendered by the top court of
Singapore which accepted the validity of criminalization of homosexuality declaring s.377A of
the Singapore Penal Code which prescribes punishment by penalizing acts of gross decency
between two male individuals. Before moving towards the critique of the Judgment, it is

important to be cognizant that not only do both the countries have commonalities as mentioned
aforementioned, homosexual and members of the LGBTQI+ present in both the societies are
representative of a minority group that has been denied their rights to live with dignity and
without proper attention to the right of privacy from times immemorial.
The situation in India changed after the Judgment passed by the Hon’ble supreme court in the
celebrated case of Navtej Singh Johar and Ors. v. Union of India (hereby referred to as
Navtej).The 5 judge bench of the top court unanimously considered the section 377 in the Indian
Penal Code (overlapping with s.337A of the Singapore Penal Code) as violative of articles 14,
19 and 21 of the Constitution by taking the stand that sexual orientation is an inherent part of
one’s identity and that consensual homosexual sex among two adult males should be exempted
from criminal liability since it comes under their freedom of expression and goes hand to hand
with their right to privacy, which is also a fundamental right as recognized by the nine-judges
bench of the Indian Supreme Court recognized in K.S Puttaswamy v. Union of India, along with
their right to live with dignity and liberty. The constitution, as per the bench, is for the safeguard
of the rights of all the citizens of this country and doesn’t allow discrimination against any
minority group on any basis. In this case, supremacy is allocated to the aspect of constitutional
morality in contrast with the idea of popular societal morality.

The overlapping provisions found in the constitution of both the countries can be blatantly seen
as Art 9(1) of the Constitution Of Singapore alongside Art12(1) and Art 14(1)(a) find
congruence with Article 21, Article 14 and Article 19(1)(a) of the Indian Constitution
respectively. The Singapore judgment has been reviewed based on the aforementioned grounds
as to how the interpretation of the Indian S.C has differed from the reasoning used in the
Singaporean context to decide on an issue relating to the constitution.

1) Towards The Issue Of Presumption Of Constitutionality:
The Singapore court took the view that a presumption of constitutionality lies while considering
the position of S.377A. This justification for this as elaborated by the court is based by taking
reliance on the decision rendered by The Court of Appeals in Lim Meng Suang (CA), which
stated that “pre-independence laws should not be regarded as less inferior when compared with
post-independence laws as the former were also formulated during colonial rule”. Emphasis is

supplied here that these same conditions were present while the formation of the Indian
Constitution. However, The SC of the Indian judiciary held in Navtej that the essence of the idea
behind the presumption of constitutionality is that the parliament is cognizant about the needs of
the people. Presumption of Constitutionality doesn’t arise while viewing S.377 of the IPC in case
of pre-constitutional laws enacted by a foreign body (i.e. the British administration) which
transgresses the fundamental rights of the people (held in Navtej in para 344). Again, light is
shed on the fact that both the Sections in question i.e. s.377A and s.377 were products of an older
era of British legislation and the then prevailing social standards of conduct which now appear as
anachronistic, as per current times. The view taken by the Singapore Supreme Court has no
correct legal relevance by adopting the principle of the presumption of constitutionality.

2) Difference In Use Of The Reasonable Classification Test:
Both the courts agreed on what constitutes the test of reasonable classification by laying down
two points:
● “There should be a reasonable classification based on an intelligible differentia; and,
● “This classification should have a rational nexus with the objective sought to be
The Singapore court followed this test to establish whether art 12(1) of the Singapore’s
constitution is violated by s.377A. On the first grounds of the test, The court went on to hold that
the legal criterion for satisfying the first ground only has to be that the piece of legislation should
be capable of being understood by intellect/understanding. On the second limb of the test, the
court affirmed that since s.377A served the legislative purpose and had a rational nexus, of
allowing criminalization of homosexuality, to safeguard both public and societal morality. This
highlights the restrictiveness of the judicial reasoning employed by the Singapore S.C. In State of
Kerala & Anr v. N.M Thomas and Other, It was stated by S.C that the resolution of
constitutional issues needs a wider perspective and cannot only rely on the law itself.

The Indian S.C, the court has elaborated on why s.377 of the IPC fails not only the reasonable
classification test but also has further emphasized the point that article 14 of the Indian
constitution, analogous with art. 12(1) of the Singapore’s constitution), contains the substantive
question of the equality of every person before the law and equal protection of the law and the

same cannot be reduced to a formal exercise such a classification test as it may miss out on the
issue of state arbitrariness among other substantive issues (In Navtej, para 380). The court went
on to rely on Shayara Bano v. Union of India, another S.C judgment which stated and elaborated
the test of manifest arbitrariness, as another criterion of reviewing legislation that violates the
fundamental right of equality enshrined in the provisions, under art. 14. The court went on to
state that s.377 of the IPC denies equal protection to one class of people. Such class legislation
cannot be valid when sexual orientation is an inherent part of one’s identity.

3) Use Of Traditional Judicial Review And The Argument Of Constitutional Morality
As mentioned above, The Singapore court took a very restrictive and traditional approach while
passing judgment. This can be illustrated by three major points:
● The Rejection of the Doctrine of Proportionality: The court stated that the proportionality
doctrine should be viewed as a distinct concept and not in line with the traditional
principles of judicial review (Para 221, page 73 of the judgment). The court was
oblivious of the use of this principle in various other common-law systems such as in
India and Canada and other European countries.
● The narrow scope is given to the word “expression” as per art.14 (1)(a) of the Singapore
constitution: Being analogous to art.19 (1)(a) of the Indian constitution, the Singapore
court, limited the definition of “expression” to mean a form of communication be it
verbal or non-verbal. In contrast, The Indian S.C relying on the judgment given in
National Legal Services Authority v. Union of India, explained that gender identity is an
inherent part of one’s identity and that expression also includes mannerism behavior and
at the same time is indicative of how one expresses his sexual identity which the court
considers being a central element of a person’s dignity, freedom, and privacy.
● The limited approach is taken while interpreting art 9(1) of the Singapore constitution by
the court: Art. 21 of the Indian constitution is similar to art.(9)(1) as both talk about the
protection of the personal liberty of an individual. The Singapore court held that s.377A
was not violative of art.(9)(1) of the constitution simply because it blatantly rejected the
idea of sexual orientation being a part of one’s innate nature as it was scientifically
inconclusive. There is a moratorium imposed on the enforcement on the penal provision
as pronounced in the speech given by the country’s P.M Loong, it doesn’t exempt

criminal action being initiated against homosexuals as The Criminal Procedure Code of
Singapore, particularly s.14 and s.17 which allows for police investigation based upon
complaints. The Indian S.C in Navtej held that criminalization of consensual homosexual
sex is manifestly arbitrary and against the fundamental rights enshrined in article 21,
provided that sexual identity is the natural identity of an individual as affirmed in K.S
Puttaswamy and Ors. v. Union of India. The law being Domus Sua Cuique Est
Tutissimum Refugium: A man’s house is his castle. To allow the criminalization of such
personal conduct between individuals is indicative of excessive state interference.
In the context of constitutional morality, there was a vast difference between the two judgments.
The Singapore judgment gave prominence to the idea of societal and popular morality and
simply disallowed external valid arguments because it did not apply to the Singaporean context
whereas Indian S.C, placing reliance on S. Khushboo v. Kanniammal, where the court
emphasized the need to tolerate unpopular views in a sociocultural space thus further stating that
the notions of social morality are subjective and the imposition of a criminally punitive aspect
cannot form means to interfere with one’s autonomy. Similarly citing the case of Naz Foundation
(India) Trust v. Union of India the court also emphasized the statement that societal and popular
morality arising out of a majoritarian view cannot be a valid basis for curtailing fundamental
rights under Art 21, that it stands completely distinct from constitutional morality

4) International Covenants And Exclusion Of Important Common Law System
The Singapore S.C rejected major international common-law judicial decisions who have passed
decisions decriminalizing homosexuality such as The Canadian S.C decision passed in James
Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada and another, the
court held that sexual orientation is a deeply personal characteristic and deserves constitutional
protection. The African Commission in Zimbabwe Human Rights NGO Forum v. Zimbabwe
stated that discrimination is prohibited based on sexual identity. In Dudgeon v. United Kingdom
it was held “Although members of the public who regard homosexuality as immoral may be
shocked, offended or disturbed by the commission by others of private homosexual acts, this
cannot on its warrant the application of penal sanctions when it is consenting adults alone who
are involved”. The court has also disregarded the Universal Declaration of Human Rights,

International Covenant on Economic, Social and Cultural Rights, The International Covenant on
Civil and Political Rights, The Yogyakarta Principles all have provisions with regards to
recognition of the rights of people belonging to the LGBTQI+ community.

It becomes evident that the Singapore Court was incorrect by giving supremacy to societal
morality rather than to the idea of constitutional morality thus allowing for the further
marginalization of an already minority group who lives in fear of being criminally prosecuted
without their country giving any importance to the concept of rights of human privacy,
autonomy, liberty, and expression. Furthermore, we observe the Singapore judgment as being
completely restrictive in its approach to constitutional issues. By maintaining this rigidity, they
refuse the idea of their constitution possessing an organic character, in contrast, the Supreme
court of Canada, India and South Africa along with other common law systems, who state that
their constitution is living and transformative to reflect the current needs of times, therefore
refuse to grow as country socially and morally.

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