CLD Case Commentaries

Change in Law: Repeal of s377 in India

Introduction

On 6 September 2018, the Supreme Court of India ruled in the case of Navtej Singh Johar & Ors. v Union of India thr. Secretary Ministry of Law and Justice[1] (“Navtej Singh Johar”) that the criminalisation of consensual sex among adults in private, including homosexual sex under Section 377 of the Indian Penal Code[2] (“IPC”) is unconstitutional. The reading down of S377 effectively decriminalises consensual homosexual sex in India.

This historic repeal has sparked much discussion in Singapore over the fate of s 377A of the Penal Code,[3] particularly in the context of the ongoing 2018 Penal Code Review. In light of the close legislative history of the Penal Codes in both countries, many wonder about the implications the repeal in India will have on its Singapore counterpart. Therefore, this article aims to give a brief outline of the legislative history of both jurisdictions and to shed light on how the landscape surrounding the issue has changed in recent years.

Section 377 in India[4]

  1. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

S377 outlawed sexual activities that were “against the order of nature” and was interpreted by courts as, among other acts such as bestiality, referring to homosexuality.[5] For the purposes of this article, all further mentions of S377 of the IPC refer only to its criminalisation of consensual homosexual sex in private.

In 2009, the Delhi High Court found S377 to be unconstitutional. However, the Supreme Court subsequently reversed the decision in 2013, arguing that the repeal of S377 was an issue for the legislative.[6] This year, the Indian government placed the responsibility back onto the Supreme Court, saying that it would not contest its decision.[7]

Key elements of the ruling

  • The court had to determine if S377 of the IPC was constitutional with respect to its criminalisation of consensual sexual intercourse between adult persons belonging to the same sex in private

  • S377 of the IPC, insofar as it criminalises consensual homosexual conduct is unconstitutional[8]

  • S377 will continue to govern “non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality”[9]

  • Concluded prosecutions shall not be reopened but the reading down of S377 in Navtej Singh Johar can however be relied upon in pending cases[10]

  • LGBT people are entitled to the protection of equal laws and to be treated without stigma[11]


Impact of S377 in India

S377 is rarely enforced in India. However, LGBT groups have highlighted that it has often been used to blackmail and harass homosexual Indians.[12]

For instance, Humsafar Trust, a LGBT group, said that its crisis response team had handled 18 of such cases in the past two years, involving blackmailing by the police or people threatening to report their activities to authorities. They have also received at least 52 reports of LGBT people experiencing workplace harassment but could not report them due to S377.[13]

One account shared that he had heard of friends who had been beaten up by gangs or taken to prison where police officers demanded bribes to let them off.[14]

Section 377A in Singapore

Singapore was once a part of the British empire, administered by the British from Calcutta, India. As such, many of our laws, including our Penal Code, were imported from India. S377 of the IPC was imported as s 377 of our Penal Code. In 2007, s 377 was repealed by the Penal Code (Amendment) Act 2017 and substituted with a new s 377 which criminalises sex with corpses.

Section 377A of the Penal Code operates to criminalise consensual sex between adult men. It was introduced into the Penal Code in 1938 and can be traced to the Labouchere Amendment.

Outrages on decency[15]

377A.  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.

With the repeal of S377 of the IPC in India, discussion has brewed locally as to whether Singapore ought to follow suit. The discussion below aims to cover the following:

  • Comparison between S377 of the IPC and s 377A of the Penal Code

  • History of the debate/fight to repeal s 377A in Singapore and how the landscape surrounding the issue has changed in recent years

  • Various opinions for and against the repeal of s 377A


Comparison between laws against unnatural sex in India and Singapore

As the aforementioned has shown, s 377 of the Penal Code in Singapore was adopted from the Indian Penal Code of 1860. However, since its initial adoption, s 377 has been modified in Singapore and now differs in form, and arguably substance, from its original adaptation of the Indian Penal Code of 1860.

Most notable is the addition of s 377A into the Singapore Penal Code, which criminalizes penetrative sexual acts between men. Arguably, the introduction of s 377A serves as a mere extension of its predecessor, s 377, in that it serves the function of prohibiting unnatural sex. However, populist culture has sketched the enactment of s 377A as a statute oppressing LGBTQ rights. Therefore, the debate surrounding the repeal of s 377A extends beyond the legalisation of homosexual acts – it is symbolic of the fight for LGBTQ rights in Singapore.

History of the debate/fight to repeal s 377A in Singapore and how the landscape surrounding the issue has changed in recent years

The 2007 Penal Code (Amendment) Bill

In 2007, Parliament introduced the Penal Code (Amendment) Bill. The amendment proposed for the repeal of s 377, which had been read by courts in both Public Prosecutor v. Kwan Kwong Weng[16] and Annis bin Abdullah v. Public Prosecutor[17] to criminalise oral and anal sex between consenting adults. While the 2007 amendment bill was successful in repealing s 377, the proposal to repeal s 377A did not receive the same support.

During the announcement of the 2007 Penal Code (Amendment) Bill, Member of Parliament, Siew Kum Hong, had submitted a public petition requesting Parliament to repeal s 377A of the Penal Code. Within three days of its submission, the petition had garnered over two thousand five hundred signatories in support of the repeal. However, over 15,000 Singaporeans had signed the petition calling for the retention of the section.[18] This was a precursor for the heated debate that followed in Parliament.

The proposal to retain s 377A in the Singapore Penal Code was hotly debated during the parliamentary debate. During the debate, Prime Minister Lee Hsien Loong spoke to explain the Government’s position on the decision to retain s 377A.[19]

  • Homosexuals should not set the tone for society but the Government will not proactively enforce s 377A either

  • Abolishing s 377A was not going to end the debate on homosexuality

    • Conservative Singaporeans will still be deeply concerned over the “moral values of society”

    • Abolition of s 377A alone was not going to satisfy gay rights activists

  • Society has not come to a consensus on homosexuality. Instead, both sides had strong views which would only be divisive


Given that the a repeal of s 377A was not going to be definitive on the matter and that Singaporeans were still strongly divided over the issue, PM Lee felt that maintaining the status quo was the best compromise to make. PM Lee acknowledged the legally untidiness and ambiguity of the solution but felt it was nonetheless a practical solution to an inherited piece of law.

Challenges to the constitutionality of s 377A

Section 377A has been challenged time and again for being unconstitutional. Arguments have been put forth that the statute goes against Arts 9 and 12 of the Constitution,[20] which deals with rights to personal liberty and equality before the law respectively. In particular, there have been two landmark cases,[21] which were heard together in a consolidated judgment handed down by the Supreme Court of Singapore dealing with the constitutionality of s 377A.

The two groups of plaintiffs had been unsuccessful in their separate applications to the High Court. Both groups appealed against the High Court decisions and a consolidated appeal was heard by the Court of Appeal. In a seventy-page judgment, the Court of Appeal dismissed both appeals, holding that s 377A was not unconstitutional under Arts 9 and 12 of the Constitution.

Outcome of the consolidated appeal in 2014

The two landmark cases wherein s 377A was challenged as being unconstitutional were Tan Eng Hong v. Attorney General [2012] SGCA 45 and Lim Meng Suang and another v. Attorney General [2013] SGHC 73. In a joint judgment which was delivered on 28 October 2014,[22] the court held that s 377A satisfied the legal requirements under Art 12 and that the provision was not unconstitutional. In the judgment, the court opined that the categorisation of homosexuals as a class served the purpose of s 377A. Additionally, the court found that s 377A did not infringe on the guarantee for equal protection under Art 12 as there was an acceptable basis for the purpose of s 377A when formulated by Parliament. Homosexuality also did not fall under Art 12(1) which did not touch on issues of “gender”, “sex” and “sexual orientation”. Therefore, s 377A did not contravene Art 12 and is not void for unconstitutionality.

The court also took extra care to avoid contemplating extra-legal issues and step into legislative territory.[23] Despite acknowledging the validity of many of the arguments heard, the court felt that the issue “involved extra-legal considerations and matters of social policy which were outside the remit of the court, and should…have been canvassed in the legislative sphere”.[24]

Reactions in Singapore towards the historic repeal in India

While our jurisdiction may have a shared judicial history with India with regards to the Penal Code, it is evident that the repeal of s 377 in India has no direct impact on its Singapore counterpart. That being said, the news sparked a mix of reactions in Singapore.

Reactions were strident. While LGBT activists were encouraged by the landmark decision in India, other more conservative groups in Singapore were strongly opposed to it.

An online survey conducted from end-July to early-August 2018 found that 55 per cent of Singaporeans supported s 377A while 12 per cent opposed it. 750 Singaporean citizens and permanent residents aged 15 to 65 took part in the survey.[25]

Law Minister K Shanmugam emphasised that Singapore remained “deeply split” on this issue and that “the laws will have to keep pace with changes in society and how society sees these issues”.[26]

Various opinions for and against the repeal of s 377A

Section 377A should be repealed

  • Homosexuality is not a disease/mental disorder. WHO has, since 1990s, deleted it from its list of recognised mental disorders. Science pegs a person’s sexual orientation to the interplay between genetic, hormonal and environmental influences.

  • The majority of countries in the United Nations do not criminalise homosexual intercourse (124 of 196 states). Among these countries includes traditionally conservative Eastern countries including China, South Korea and Japan.

  • The concepts of sin and crimes should not be conflated. While homosexuality may be dubbed a sin, transcending various religions and personal beliefs, it should not be made a crime. Singapore, being a secular state, should not have to play a role in enforcing the dogmas of said religions and beliefs.


Section 377A should not be repealed

  • The argument that male-on-male sex ought not to be criminalized when the activity is consensual is flawed because the consent, while an important value, is not absolute. Should this argument be merited, the logical extension to such an argument would include the repeal of other statues, including s 376G of the Penal Code which currently prohibits incest.

  • The matter of whether homosexuality is biological is a highly politicized matter.


Conclusion

In conclusion, while the historical decision by the Indian Supreme Court has renewed the debate over our very own s 377A, it would seem that Singaporeans remain deeply divided over the issue. Despite our shared judicial history with respect to the Penal Code, and the fact that the repeal occured in a similarly conservative society like India, the situation in Singapore is very much different.

While the Indian government had deferred the issue of the constitutionality of S377 in India to its Supreme Court, the power to repeal s 377A remains entirely in the hands of the legislative branch of Singapore.[27] For now, it would seem that the House remains divided on the matter.[28] That being said, the issue will continue to remain open for future generations to decide. As Law Minister K Shanmugam noted, “the laws will have to keep pace with changes in society and how society sees these issues”.

This article was written in 2019 by Glenn Ang Yu Jie and Elizabeth Chin Jia Qi, NUS Law Batch 2022.

Bibliography

[1] Navtej Singh Johar & Ors. v Union of India thr. Secretary Ministry of Law and Justice, W.P. (Crl.) No. 76 of 2016 (Supreme Court of India, 06/09/2018).

[2] S. 377, The Indian Penal Code, 1860.

[3] Penal Code (Cap 224, 2008 Rev Ed Sing), s 377A.

[4] Supra note 2.

[5] Withnall, A., “India’s Supreme Court rules gay sex is no longer crime in historic Section 377 judgment”, The Independent (6 September 2018), online: <https://www.independent.co.uk/news/world/asia/india-gay-sex-crime-supreme-court-section-377-decision-lgbt-rights-illegal-a8524971.html>

[6] Sommerlad, J., “Section 377: How India brought an end to criminalisation of its LGBT+ community”, The Independent (6 September 2018), online: <https://www.independent.co.uk/news/world/asia/section-377-india-gay-sex-crime-lgbt-supreme-court-dipak-misra-a8525116.html>

[7] ET Online, “Section 377: Government leaves decision to the wisdom of the Supreme Court”, The Economic Times (11 July 2018), online: <https://economictimes.indiatimes.com/news/politics-and-nation/section-377-government-leaves-decision-on-the-wisdom-of-the-supreme-court/articleshow/64942825.cms>

[8] Supra note 1 at [156], Dr Dhananjaya Y Chandrachud, J.

[9] Supra note 1 at [21], Indu Malhotra, J.

[10] Ibid.

[11] Supra note 1 at [97], R.F. Norman, J.

[12] Supra note 5.

[13] Safi, M., “Campaigners celebrate as India decriminalises homosexuality”, The Guardian (6 September 2018), online: <https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality>

[14] Dasgupta, R., “This is what it was like growing up queer in India when homosexuality was illegal”, The Independent (30 July 2018), online: <https://www.independent.co.uk/voices/india-gay-childhood-lgbt-illegal-homosexual-laws-section-377-a8469781.html>

[15] Supra note 3.

[16] Public Prosecutor v. Kwan Kwong Weng [1997] SGCA 8

[17] Annis bin Abdullah v. Public Prosecutor [2004] SGHC 52

[18] Radics, G.B. (2005), Section 377A in Singapore and the (De)Criminalisation of Homosexuality

[19] Parliamentary Debates Singapore: Official Report, vol 83 at col 2397 (23 October 2007) (Mr. Lee Hsien Loong).

[20] Constitution of the Republic of Singapore (1985 Rev Ed), arts 9(1), 12(1), 12(2).

[21] Tan Eng Hong v. Attorney-General [2013] SGHC 199; Lim Meng Suang v. Attorney General [2013] SGHC 73.

[22] Lim Meng Suang and another v. Attorney-General and another appeal and another matter [2015] 1 SLR 26; [2014] SGCA 53.

[23] Ibid at [8] and [10].

[24] Ibid at [189].

[25] Gilaine Ng, “55 per cent of Singapore residents support Section 377A: Ipsos survey” The Straits Times (10 September 2018), online: <https://www.straitstimes.com/singapore/55-per-cent-of-singapore-residents-support-section-377a-ipsos-survey>

[26] Faris Mokhtar, “The Big Read: With a house still divided over 377A, time to seek common ground” TODAY (15 September 2018), online: <https://www.todayonline.com/big-read/big-read-house-still-divided-over-377a-time-seek-common-ground>

[27] Gilaine Ng, “55 per cent of Singapore residents support Section 377A: Ipsos survey”, The Straits Times (10 September 2018), online: <https://www.straitstimes.com/singapore/55-per-cent-of-singapore-residents-support-section-377a-ipsos-survey>

[28] Supra note 26.

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