Article published in Fast Forward Justice.
This article is an analysis of the judgment passed by Honorable High Court of Singapore in Ong Ming Johnson & Ors. vs. Attorney General, wherein it refused to decriminalize Section 377A of the Penal Code of Singapore. It endeavors to draw an analysis of Section 377 of Indian Penal Code, 1860 and Section 377A of the Penal Code of Singapore. Vide this article the author wishes to bring forth the ambiguity in the judgment as well as Section 377A of the Penal Code of Singapore, which arbitrarily infringes upon rights and personal liberties of the individuals in Singapore. It further draws an inference based on a reasonable approach which could have been adopted by the Hon’ble Singapore High Court while passing the judgment and explains the approach of the Supreme Court of India in Navtej Singh Johar & Ors. vs. Union of India & Ors. and Justice K.S. Puttaswamy (Retd.) vs. Union of India. This article also endeavors to draw a certain comparative analysis of Constitution of both nations and different approach of the courts and explains how the Supreme Court of India has applied a reasonable approach on the said subject. Further it concludes by stating how law should evolve as per the society, the importance of the fundamental rights and the Constitution and the significant role constitutional courts of a country.
“Change is the law of life. And those who look only to the past or present are certain to miss the future.”- John F Kennedy
Recently, the Singapore High Court refused to decriminalize Section 377A of the Penal Code of Singapore in Ong Ming Johnson & Ors. Vs. Attorney General. The judgment passed by the Supreme Court of India in “Navtej Singh Johar & Ors. Vs. Union Of India & Ors.” was critically analysed in the same. In Navtej Singh’s case Section 377 of the Indian Penal Code, 1860 was held unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. These provisions i.e. Section 377A of the Penal Code of Singapore and 377 of the Indian Penal Code were not pari materia which the High Court of Singapore failed to consider. This article, mainly focuses on:
1. What is Section 377A of the Penal Code of Singapore?
2. What should be the status of Section 377A post the judgment passed by the High Court of Singapore?
3. What should have been the approach of the Learned Attorneys and the Honorable Court to arrive at a reasonable conclusion?
II. Section 377A of Penal Code of Singapore & Section 377 of Indian Penal Code, 1860
To answer the first question lets have a look at what exactly Section 377A states:
OUTRAGES ON DECENCY – 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 377A mainly focuses on commission and abetting of acts of gross indecency by one male with another male whereas Section 377 of the Indian Penal Code, 1860 only criminalizes carnal intercourse against the order of nature. If we step into the history of Singaporean law, we would gather vide Penal Code (Amendment) bill, 2007, the provision criminalizing carnal intercourse was repealed by the Parliament of Singapore which affected rights of the LGBTQ community in the country. It is pertinent to note that Section 377 of the Penal Code of Singapore was repealed, however section 377A was retained. A bare perusal of the debates which led to the passing of the amendment bill clarified that the country was facing crimes relating to male prostitution immensely.
It is also noteworthy that in 1938 this provision i.e. 377A was introduced by the colonial legislature to target the capers of rampant male prostitution and it did not criminalize penetrative sex. However, post the 2007 amendment the government of Singapore directed that the authorities shall not proactively enforce 377A. Mr. Chan Sek Keong, former Chief Justice of Singapore in his article “Equal Justice under the Constitution and Section 377A of the Penal Code: The Roads Not Taken” makes a reference to 377A as under “Section 377A was created in 1938 to deal with the problems of public male prostitution which were rife then, not because homosexual behavior was seen as unacceptable”. However it is most unfortunate that even in 2020, it stands unfettered as it was back in the 1930’s still stand at the same position.
III. Fallacies in Section 377A
What should be the status of Section 377A post the judgment passed by the High Court of Singapore?
On careful observation it can be seen that the law stated in Section 377A and pursuant to understanding the purpose of the Constitution of Singapore, it is evident that the section is ambiguous and unconstitutional. Let us now examine the fallacies in this provision:
a. It is gender specific –
Although their constitution provides equal protection of law under Article 12, the provision focuses only on acts of indecency by a man to a man. However, they remain silent about any such acts, which is against the fundamental provisions as enshrined by law under Article 12. The mere presumption and ambiguity in the section goes to the root of fundamentals of equality as provided under any law in the world.
b. Ambiguous as to what constitutes act of gross indecency?
Gross indecency has not be defined under penal provisions of the Penal Code of Singapore in such circumstances it creates an ambiguity into the interpretation which may vary from person to person and court to court for example an act which may appear indecent to one person may not be the same for another person. Mere assertions of an act of indecency or what constitutes indecency which may form the basis of a person’s prosecution in law is grossly unconstitutional and infringes on that persons rights as guaranteed under the Constitution of Singapore.
c. Under what authority/extent can the state interfere with acts done in “private”?
The Indian Supreme Court in Justice K.S. Puttaswamy (Retd.) vs Union of India upheld a persons right to privacy as enshrined in the Constitution of India. The much celebrated judgment came as a beacon light of hope to millions of people who identify themselves as the LGBTQ community in India and also formed the substratum of Navtej Singh Johar’s The Honorable Supreme Court of India has rightly interpreted a person’s right to privacy, which an individual holds dear and are one of the major fundamental rights guaranteed under the constitution of India. Honorable Justice D.Y. Chandrachud has beautifully explained privacy as:
‘Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being;’
However, the Honorable High Court of Singapore fails to consider privacy or acts done in private with consent between two consenting adults irrespective of their gender infringing upon their solemn right of expression. The interpretation of right to liberty and freedom of expression of an individual given by the Honorable High Court of Singapore is confined and indicates a sense of prejudice, under the garb of indecency.
IV. Reasonable Approach
The approach of the Honorable High Court of Singapore could have been more reasonable by applying principles of interpretation leading to an unambiguous and reasonable provision of law and at the same time considering the varying mentality and beliefs of the society, and derive a conclusion which could facilitate the purpose of the provision as well as protect its constitutionality. The Supreme Court of India, has interpreted Section 377 to be unconstitutional only to the extent where there is lack of consent of both the partners. Although the idea and purpose of the section 377A is different, the Honorable High Court perhaps should have amended the provision to the extent that includes all genders, does not arbitrarily invade the privacy of the citizens and confine it only to the extent of acts of indecency in public. The law could have been more specific as to what amounts to an act of gross indecency which constitutes an offence under the section. The former Chief Justice of Singapore had indicated that gross indecency could be touching of private parts or oral sex, however the statute still remains silent on the same. A more lucid purposive rule of interpretation with a flexible mindset along with thinking out of the box, and not following the principle of stare decises strictly could also have been a reasonable approach.
The law in every state is supreme and the character of a country is defined not only by the law of the land but also how it treats a certain section of minorities of the that particular state. It is should be the supreme duty of that sovereign state to uphold the constitutional values entrusted upon an individual who only seeks to be treated equally with others irrespective of how that individual chooses to express him/herself/themselves/itself with consent in private. It is the duty of the constitutional courts of any country to realise the evolving nature of this living instrument i.e. its “Constitution”, and through its dynamic and purposive interpretative approach, the judiciary of that country must strive to breathe life into its constitution and not render the document a collection of mere dead letters.
 Ong Ming Johnson & Ors. v. Attorney General (2020) SGHC 63 (Singapore).
 Navtej Singh Johar & Ors. v. Union Of India & Ors 2018 (9) SCJ 3 (India).
 Hansard, Parliamentary Debate on Penal Code Amendment Bill, WORDPRESS, (Oct.23,2007), https://yawningbread.files.wordpress.com/2011/03/file_201103_23.pdf
 Chan Sek Keong, Equal Justice under the Constitution and Section 377A of the Penal Code: The Roads Not Taken, (2019) 31 SAcLJ 773.
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
 Ashok Kumar Gupta & Ors. v. State of Up & Ors., (1997) 5 SCC 201.