By Raj Krishna and Rishika
Human dignity is harmed when minority groups are marginalized.
– Judge Michael Leburu
On 30th March 2020, the High Court of Singapore, in Ong Ming Johnson v Attorney-General and other matters, upheld the colonial-era law that criminalized homosexuality between two consenting adults. The Court held that Section 377A of the Singaporean Penal Code does not violate Articles 9(1), 12(1) and 14 of the Constitution and is therefore constitutional. The bench presided by Justice See Kee Oon further observed that Section 377A is important because it helps in safeguarding the public morality.
It would not be wrong to state that the reasoning of the Singapore High Court is quite similar to the reasoning of the Indian Supreme Court in the infamous case of Suresh Koushal v. Naz Foundation, wherein the Apex Court upheld Section 377 of the Indian Penal Code which criminalized homosexual acts between two consenting adults.
This case has been brought by three plaintiffs, namely Mr Ong Ming Johnson, Mr Choong Chee Hong and Dr Tan Seng Kee who filed a plaint before the High Court in 2018-19 seeking a declaration that Section 377A of the Penal Code violates Articles 9(1) [Right to Life and Personal Liberty], 12(1) [Right to equality and equal protection] and 14 [Right to freedom of speech and expression] of the Constitution.
It is, however, pertinent to note that Court of Appeal in the case of Lim Meng Suang and another v Attorney-General, had previously upheld Section 377A because it was meant to address public morality.
The Supreme Court of India ruled that the criminalization 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.
-Justice See Kee Oon
After going through the submissions of both the parties, the Court dismissed the plaint on the ground that Section 377A is constitutional because it criminalizes the act of gross indecency rather than the identity or status of male homosexuals [Paragraph 281-282]. The High Court observed that Section 377A does not violate Article 12 of the Constitution as Article 12 is neither under or over-inclusive. As a result it will be wrong on the part of the Court to adopt a broader test of proportionality. [Paragraph 170-174].
The Court further observed that Section 377A does not violate Article 14(1) (a) of the Constitution because the right to freedom of expression needs be understood as the right to freedom of speech, encompassing matters of verbal communication of an idea, opinion or belief.
At last, the Court ruled that the presumption of constitutionality applies to Section 377A as the provision was extensively debated and retained by Parliament in 2007. Since Legislation remains important in reflecting public sentiments and beliefs, any decision in relation to public sentiments and beliefs thus should be left to the wisdom of the Parliament. [Paragraph 150-154].
As a result, the Court held that the judgment of the Court of Appeal in Lim Meng Suang and another v Attorney-General in relation to a number of the arguments raised in this case is binding.
Analysis and the Way Forward
Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech, and mannerisms. Gender identity, therefore, refers to an individual‘s self-identification as a man, woman, transgender or other identified category.
– Justice Radhakrishnan
The judgment of the Singapore High Court is constitutionally preposterous and morally egregious. The Court has adopted the traditional principles of judicial review while testing the validity of the legislation and has not looked into the implications and effects of the law.
It should be borne in mind that constitutional rights cannot be dictated by majoritarian views and popularity. If the fundamental rights of a citizen are violated, then it’s the duty of the Court to check the abuse rather than to wait for the parliament’s action. Per contra, the Court, in our views wrongly, felt it right to shift the onus to the parliament.
Further one needs to remember that sexual orientation is integral to the identity of an individual. Sexual orientation is intrinsic to an individual’s dignity, inseparable from their autonomy and lies at the heart of their privacy. Denial of self-expression is like inviting death. Irreplaceability of individuality and identity is a grant of respect to self. This realization is one’s signature and self-determined design.
Recently many African nations such as Botswana, Mozambique, Angola, and Seychelles decriminalized homosexual activity between consenting adults. In September 2018, the Indian Apex Court decriminalized homosexual acts between two consenting adults. Taiwan became the first Asian country to legalize same-sex marriage and the lower house of the Bhutan parliament decriminalized homosexuality. In such a progression, the judgment of Singapore High Court seems to be an aberration.
In the past, the world has witnessed certain horrendous judgments like Dred Scott v. Sanford, where the US Supreme Court held that blacks could never be considered as citizens of the US; Plessey v. Ferguson, where the US Supreme Court held segregated schools as constitutional; Suresh Koushal v. Naz Foundation, where the Indian Supreme Court upheld Section 377 of the Indian Penal Code, which like its Singaporean counterpart, criminalized homosexuality, and many more which have stood out as moments of deep national shame, blots on a judicial record and examples of judgments at their very worst.
However, at the end of the day they all have been overruled. The plaintiffs in this case have filed an appeal against this erroneous High Court ruling. It is therefore hoped that the Court of Appeal shall undo the wrongs done by the High Court decision and take the march of equality forward.
[The authors are 5th-year students at Chanakya National Law University. Image Courtesy: The Independent]