Homosexuality Is Not A Form Of 'Expression': Singapore SC Disagrees With 'Navtej Singh Johar' Judgment [Read Judgment]

The Supreme Court of Singapore recently upheld the law which criminalizes Homosexual activity between males.

The Supreme Court of Singapore consists of the High Court and the Court of Appeal. The decisions of the High Court are appealable before the Court of Appeal. Reportedly, appeals have already been filed against the High Court ruling before the Court of Appeal.

The Court of Appeal had, in the year 2014, affirmed the decision of the High Court which had dismissed the challenge against s 377A in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26.

The three new petitions were filed after the Supreme Court of India delivered its judgment in Navtej Singh Johar v Union of India, AIR 2018 SC 4321. Naturally, the High Court judge Justice See Kee Oon has made reference to the Indian SC judgment in Navtej Singh Johar.

This piece intends to examine the difference in approach of two Supreme Courts towards criminalization of homosexuality.

Section 377A Penal Code

Unlike Section 377 of Indian Penal Code, Section 377A of Singapore Penal Code penalizes only males. The provision reads as follows: Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years. Section 377 of the Singapore Penal Code, was pari materia with its Indian counter part, and it was repealed in the year 2007. So one of the issues considered by the Court was whether targeting of male-male sexual conduct as opposed to male-female sexual conduct or female female sexual conduct is so unreasonable as to be illogical and/or incoherent. This issue was answered in the negative.

Indian SC Gave Wider Meaning To 'Expression'

The main disagreement of the judge with the Indian SC ruling is its giving of wider meaning to the term 'expression' in Article 19 of the Constitution of India. According to him, the right to freedom of expression cannot be divorced from the right to freedom of speech and therefore "expression", when read together with the term "speech", must necessarily point towards some form of verbal communication.. The judge observed thus:

"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. "

According to the Judge, such an expansive interpretation can potentially lead to absurd outcomes. He notes:

"If such an interpretation is adopted, it would mean that virtually any act could be protected under Art 14(1)(a) and this could not have been intended by the constitutional draftsmen. More specifically, sexual offences such as incest, pedophilia, necrophilia, or bestiality can arguably be covered by the Art 14(1)(a) umbrella as protected forms of "sexual expression", on the premise that these acts can be characterised Ong Ming Johnson v AG [2020] SGHC 63 88 as mere expressions of sexual preference according to the idiosyncrasies of the individual. This surely cannot be correct, at least not in the Singapore context where these acts remain criminalized."

The Judge therefore held that Article 14(1) of the Singapore Constitution does not afford a constitutional right to engage in male homosexual acts as a form of "expression".

Traditional Judicial Review

The judge also noted that, in Anuj Garg and others v Hotel Association of India and others (2008) 3 SCC 1, where the Indian Supreme Court has opined at that "legislation should not be only assessed on its proposed aims but rather on the implications and the effects" The judge disagreed with this approach and observed that the Singapore Courts continue to subscribe to the traditional principles of judicial review and while testing validity of legislation it ought not take into consideration extra-legal arguments, regardless of how valid or plausible they may seem to be. 

Societal Disapproval Towards Male Homosexual Conduct

In Navtej Singh Johar, Indian Supreme Court judges had held that constitutional rights cannot be dictated by majoritarian views and popular morality. Once it is brought to the notice of the Court of any violation of the Fundamental Rights of a citizen, or a group of citizens the Court will not remain a mute spectator, and wait for a majoritarian government to bring about such a change, Justice Indu Malhotra had observed. Justice Dipak Misra (then CJI) and Justice DY Chandrachud had also made similar observations.

On the contrary, the Singapore High Court gives primacy to parliament's decision to retain s 377A in its present form, and concludes that there was no significant change in the degree of societal disapproval towards male homosexual conduct, as opposed to female homosexual conduct, as well as the impact the former was understood to have on public morality.

The provision continues to serve its purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts, the judge said quoting from debates in Parliament.

Presumption of Constitutionality Vis-a-Vis Pre Constitutional Statute

The Singapore High Court also noted that Section 377A was extensively debated and comprehensively considered by Parliament which decided to retain it and therefore the presumption of constitutionality should operate and be given full weight. The judge had observed thus:

"Section 377A is unlike many other pre-Constitution provisions that simply remained on the statute books without subsequent consideration and debate in Parliament. Views on s 377A were expressed by over a dozen Members of Parliament ("MPs"), with the Prime Minister stating that "the continued retention of section 377A would not be a contravention of the Constitution" (s 377A Hansard at col 2397). The vast majority of MPs supported the retention of s 377A. Mr Siew Kum Hong, a Nominated Member of Parliament ("NMP"), was the only member who wished for his dissent to be recorded in the Votes and Proceedings and the Official Report (s 377A Hansard at col 2444)."

The Indian Supreme Court had held that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code. It had disagreed with the contention that pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional.

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