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Review: The Ong Ming Johnson V. Attorney General Judgment (Singaporean Court) Which Deferred From Navtej Singh Judgment (Indian Court) (Section 377)

Jul. 09, 2020   •   Architi Batra

[The author, Simran Anneka Lobo, is a 1st-year law student from Government Law College, Mumbai and likes to test the interconnection between law, politics and society. ]

The Supreme Court of India in 2018 delivered some ground-breaking judgments; one amongst them was the decriminalization of Section 377 of the Indian Penal Code, 1860. This Section held ‘carnal intercourse against the order of nature’ as a criminal which implied that sexual acts of a consensual nature between same-sex adults were unconstitutional. The case of Navtej Singh Johar v. Union of India was when the apex court declared that this kind of discrimination was violative of the right to life, equality, privacy and freedom of speech and expression.

Contrary to this verdict of the Indian courts, the Singapore High Court upheld the constitutionality on the criminalization of sexual activity between men. Section 377A under the title ‘Outrages on decency’ of the Singapore Penal Code reads as: “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.”

This Singapore penal provision is specific to sexual activity between males, however, under Indian law, this provision includes carnal intercourse between man, woman and animals as well.

The Singaporean case in question is called Ong Ming Johnson v. Attorney General and other matters (2020). The plaintiffs, Mr Ong Ming Johnson, Mr Choong Chee Hong and Dr Tan Seng Kee, all sought a declaration that Section 377A was inconsistent with Articles 9(1), 12(1) and 14 of the Constitution. The cases were clubbed with the consent of all the parties involved.

Issues for consideration

The issues raised by the plaintiff consisted of the following:

Ø Whether S. 377A covered only non-penetrative male homosexual acts and whether its purpose was to target only male prostitution;

Ø Whether the doctrine of presumption of constitutionality applied to S. 377A;

Ø Whether a reasonable and intelligible differentia existed for the discrimination by S. 377A in line with Article 12 (right to equality and equal protection before the law);

Ø Whether there was sufficient scientific evidence that male homosexuality was a pure, biological factor and thus, S. 377A contravened the right to life and personal liberty under Article 9(1) ;

Ø Whether the non-derogable right of freedom of expression under Article 14 includes the right of sexual orientation and sexual preference;

Ø Whether the ongoing criminalization of S. 377A was inconsistent with Article 9(1);

Ø Whether stare decisis (where the lower court is bound to follow the decision of an appellate court) applies and thus, the verdict in Lim Meng Suang CA should be overturned as it previously held that S. 377A meant to address public morality and not only target male prostitution only.

The Singaporean Court’s Verdict

Relying on the 3-step framework for statutory interpretation as articulated in Tan Cheng Bock v. Attorney General (2017), the Court came to the conclusion that S 377A was aimed to have a wider understanding of male homosexual activities and thus, it covered penetrative and non-penetrative activity between males. As the intent was to safeguard public morality and enforce a strict standard of societal ethics, the words ‘gross indecency with another male person’ was not restricted to only male prostitution. Even with the consideration of new legislative material, the Court further confirmed that this section was enacted for broader application.

The petitioners had argued that a person’s identity encompassed their sexual orientation and thus, S 377A was absurd and in contravention to Article 9(1). They relied on material from the scientific community to contend that one’s sexual orientation cannot be changed as it was based solely on biological factors. However, the High court was of the view that these scientific materials were not comprehensive and there was no consensus on whether one’s sexual orientation was immutable. The Court declared that this was not the appropriate forum as these were “extra-legal” documents that were beyond its purview. It also stated that the section did not criminalize male homosexuals for who they were; only their male homosexual acts were criminalized.

The High Court rejected the contention that S 377A violated the right to equality under Article 12(1). It stated that there was a rational nexus between the differentia (male vs female homosexual acts) and the object being sought (to protect public morals). As there have been gender differences in other laws, the differentia cannot be called unintelligible here. Further, it declared that S 377A was neither over-inclusive nor under-inclusive.

The constitutionality of S 377A was debated extensively in 2007 in Parliament, with them ultimately deciding to retain it. Thus, the court took the view that the presumption of constitutionality for this section applies with great force.

It held that Article 14 was not infringed upon as this freedom of speech and expression covered only verbal communication and not sexual expression and closeness as argued by the petitioners. It took the view that the non-enforcement of this section does not render it redundant and these statutory provisions reflected societal beliefs and values.

The High Court believed that it had to follow the decision of the Court of Appeal in Lim Meng Suang and another v. Attorney General and another (2015) as per stare decisis; in this case, the Court of Appeal held that S 377A was meant to guard public morality and was not limited to male prostitution. With this, the High Court dismissed the 3 petitions that challenged the constitutionality of S 377A.

The Indian Court’s Views

Contrary to the views and outcome stated above, the Supreme Court in the Navtej Singh case quoting numerous other judgments held that S377 was an unreasonable restriction on people’s freedom of speech and expression. The Court also reiterated that gender identity is an essential part of one’s personality and a denial of the same would be violative in nature. The bench reaffirmed an adult’s right to choose his/her life partner and the right to equal protection of laws as well. Lastly, criminalization of consensual sexual intercourse between adults in their private sphere would contravene the right to privacy and these fundamental rights have to be upheld even if they are only affecting a minuscule of the society.

We see two contradictory and opposing views taken by the Courts of India and Singapore. It could be said that the Singaporean courts have not relied on the principles of ‘progressive realization’ and ‘transformative constitutionalism’ as the Indian courts have. It is these principles that transform an archaic society to a pragmatic one, where freedoms and fundamental rights are of the utmost priority and are well-protected.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

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