The High Court of Singapore in its judgment dated 30th March, 220 Ong Ming Johnson v. Attorney-General and other matters upheld the legality of section 377A of the Singapore Penal Code criminalizing consensual sexual intercourse between two men. The section was challenged by LGBT activists on grounds of violating the fundamental rights of citizens e.g., right to equality, right to life and the freedom of speech and expression. The judgment, pronounced by Judge See Kee Oon, justified on grounds of safeguarding public morals in the author’s opinion, was arbitrary, prejudiced and based on a random study of the legislative classification, in contravention to Human Rights principles.
The plea of the plaintiffs before the court was to reconsider the decision of Court of Appeal in Lim Meng Suang and Another V. Attorney General in 2014, which had dismissed another challenge to the constitutionality of Section 377A. The court rejected three appeals filed by three homosexual men to decriminalize the colonial-era law.
The judgment was based on a two-pronged classification test, which had to be satisfied to justify a piece of legislation propounding differential treatment. Popularly referred to as the reasonable classification test it is followed across many common law countries, including India. Of the two-pronged test firstly, an intelligible differentia must be shown for treating a particular section of the populace differently. Secondly, a rational nexus between the discriminatory act and the intended objective (which must be legitimate) needs to be established.
The constitutional validity of Section 377A was upheld concerning both limbs of the test and it was not held in violation of Article 12(1) of the Singaporean Constitution typifying the right to equality of citizens before law. The court opined “the legal criterion to show intelligible differentia is not much” and for a provision to fail the said test, it needs to be established the law is illogical and discriminatory. It held that in the particular case, the differentiation was not unreasonable because it concerned sexual intercourse between two males as opposed to sexual intercourse between a male and female. The court justified this view by reasoning that classification based on sex is permitted under Singaporean law e.g. the right to maintenance to which only women are entitled.
Concerning the second limb, the court held the differential treatment of homosexual couples had a rational nexus to the object of ensuring “the preservation of public morals”. Accordingly, it ordained Section 377A does not violate the freedom of speech and expression under Article 14(1)(a) as in the High Court’s opinion the term “expression” in the article should not be appraised broadly and covers only “verbal” modes of communication.
The “Right to equality” was interpreted in a rather formulaic manner by the court as under the Singaporean constitution and arguments framed to address the legality of the statute in light of constitutional rights to equality were termed “extra-legal” diverting from the reasonable classification test.
The Court & Governing Party (Hands in Gloves)
The Singaporean High Court aligned with the governing People’s Action Party of Singapore in pronouncing this judgment. The PAP has shown constant disinclination towards taking a stand on the constitutionality of the section, in light of the growing LGBT movement in Singapore. The court and the Government sided with the Conservative Evangelical Christian’s, who in response to the appeal had commented on the harmful impacts of homosexuality on families and society in light of Biblical teachings. A recent survey indicated 55% of Singaporeans were in support of the law, which shows how the court could have been wary of offending the conservative voter base. Ironically the former Attorney General Walter Woon said “decriminalizing section 377A would set dangerous precedence wherein the political superstructure dictates to the Public Prosecutor who is supposed to be independent, there are some laws you simply do not enforce” whence the court in upholding 377A acted as an acolyte of the political superstructure.
Exploring the Legality of the Judgement in Light of Navtej Singh Johar & Subsequent Decisions by the Supreme Court of India
The judgment atrociously negates fundamental human right principles the right to equality, privacy and free speech while pertaining to the majoritarian opinion. Unlike the judgment of the Singapore High Court, In Navtej Singh Johar v. Union of India J. Chandrachud held the general opinions of the citizenry should not dictate constitutional rights. It is the duty of the judiciary and the right of citizens to safeguard their fundamental rights in face of abuse, instead of waiting for the parliament to intervene.
Shifting the onus on the government to test the constitutionality of a section is a strict adoption of traditional principles of judicial review, ignoring the effects the law has on society and citizenry. Closer home, the Supreme Court, in Anuj Garg v. Hotel Association of India, suggested that while assessing the constitutionality of a piece of legislation, its aims and implications on the country’s social fabric should be taken into consideration. The Singaporean High Court disregarded the same line of thought for being in contravention to the Court of Appeal’s decision in Lim Meng Suang Case.
The fallacy of reasonable classification test
Effectiveness of the reasonable classification test has been questioned by Justice Chandrachud in the Navtej Singh Johar judgment. The judge disperses light on the formulaic manner in which the test interprets the right to equality, disregarding the complex history of decades of partisanship underlying the social inequality. The Singapore High Court on basis of the two-pronged test held there are certain laws that allow sex-based discrimination on basis of popular societal perceptions, such as those between men and women and in the present context it is the same, as sexual intercourse between males gets criminalized not females, the law is not “under exclusive” per se. Additionally, because acts such as incest or any other unnatural manner of intercourse are criminalized in the Singapore Penal Code the section cannot be termed over exclusive.
The court’s justification is flawed as sex-based discrimination is for the benefit of a particular section of the populace who has been oppressed in the course of history. If the discrimination extends to harming a particular group psychologically and infringes their inalienable Human Rights, it would be obstructive and deleterious to the socio-economic structure of any country.
The decision in practice is both over-inclusive in bringing private acts that are less likely to render any impact on public morals within its domain and under-inclusive in exempting homosexuality among females from its purview.
Another concern raised by the court was attributing a border meaning to “sexual expression” beyond verbal communication as a part and parcel of freedom of expression might open the floodgates for all manners of unnatural sexual offences to be brought in the ambit of “sexual expression” under article 14(1) e.g. incest. However, such a slippery slope interpretation is injudicious and imprudent in the current scenario. It is expeditious to assume that allowing two males to engage in intercourse might exclusively justify incest or bestiality
The Judgement of the Court (An Infringement of Individual Dignity & Privacy)
In the course of the judgment, the court failed to answer a more fundamental question as to why a law enacted during Victorian times and criminalized in the medieval era should be given preponderance over an individual’s constitutional right to equality and expression of identity. The objective of the section should have been analyzed in light of a democratic constitution enumerating the right to individual identity, privacy, special rights approbated to sexual minorities and equal protection before the law of all citizens. Article 9(1) of the Constitution of Singapore enumerates the right to life and personal liberty, which gets blatantly violated by the court’s decision.
Sexual orientation is constitutive of an individual’s identity. Criminalizing one’s autonomous identity is nothing short of pushing him/her to suicide since no individual can survive in alienation to his self. As Justice Malhotra reasoned in Navtej Singh Johar Case discrimination based on an “intrinsic or core trait of an individual” (e.g., sexual orientation) is unconstitutional, the meaning of equality he contended should be more substantive, in laying down certain fundamental yardsticks which cannot be subject to any discriminatory legislation.
The Way Ahead
Laws criminalizing same-sex relationships is a stench of the medieval times to be junked in the dustbin of history. The LGBT community has suffered interminable pain weighted by the hypocrisy of Victorian morality and the laws framed thence. While rectifying the wrongs of history cemented in the social fabric is a daunting task, the course for the future may be paved in light of progressive developments in countries across the world. The decision of the High Court has been appealed. The author hopes the Court of Appeal does not squander the opportunity to develop the principle of equality in Singapore beyond a mechanical application of the two-pronged reasonable classification test. Hopefully, the court shall interpret the law as per the requirements of changing times, repeal it and uphold the promise of equality, in reality.
About the Author Indrasish [2018-23] is pursuing B.A L.L. B (Hons) from National Law University Odisha. He has a special interest in Humanitarian Law and Human Rights.
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