Supreme Court Vs Supreme Court! Who do you support?

Synopsis:

1. This article talks about the reference made by Singapore SC to Navtej Singh Joahr judgement:

a. What did the Singapore SC say about Navtej Singh Johar case in its judgement?
b. What is the Navtej Singh Johar Judgement?
c. Why has Singapore SC disagreed with the judgment given by Indian SC?

2. Expression given a wider meaning:

a. According to the Singapore SC, the Indian SC has given wider meaning to 'freedom of expression'
b. Homosexuality not included in freedom of expression
c. If homosexuality is included under freedom of expression, then acts of necrophilia/pedophilia etc. would also be acceptable.

3. Societal view on homosexuality in Singapore:

a. Indian SC held that it doesn't matter how minuscule is the LGBT section, they also have the right to privacy which includes physical intimacy.
b. Singapore SC disagreed with this view.
c. Singapore SC has upheld the view taken by the country's parliament decision to criminalize homosexuality and quoted several debates from parliament.
d. Society disapproves of male homosexuality contrary to female homosexuality in Singapore, as stated by the SC.

4. Articles notes important observations made by Indian SC and countered by Singapore SC:

a. Singapore SC has continued to subscribe to the traditional principles of judicial review.
b. They have completely disregarded the views given in Navtej Singh Johar and upheld the law which criminalizes homosexuality

5. Conclusions:

a. Views given by judges in Navtej Singh Johar v. Union of India are stated and a parallel is drawn.

Introduction:

The Supreme Court of Singapore in a ruling earlier this week upheld the law which criminalizes homosexuality in their country. While extensively analyzing the issue surrounding homosexuality and its inapplicability in the Singaporean community, the Apex court of the country made a reference to the Supreme Court of India's landmark judgement which decriminalized homosexuality.

In 2018, a five-judge Constitution bench of the Supreme Court, comprising of the then Chief Justice of India Dipak Misra, Justice Indu Malhotra, Justice D.Y Chandrachud, Justice R. Fali Nariman and Justice A. M. Khanwilkar, read out s.377 of the Indian Penal Code, 1860 and held that consensual sexual intercourse between two people of same sex does not amount to criminal activity under the section. This judgement passed in the case of Navtej Singh Johar v. Union of India held that s.377 of IPC was regressive and inhibited the LGBTQ community's ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a) of the constitution which guarantees freedom of speech and expression to all the citizens of India.

The Supreme Court of Singapore, however, disagreed with this view taken by the Indian Supreme Court stating that 'the right to freedom of expression cannot be divorced from the right to freedom of speech and therefore ‘expression', when read together with the term ‘speech', must necessarilypoint towards some form of verbal communication'.

The Court in Singapore has held s.377A of the penal Code as constitutional.

Section 377A reads: 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.

It is worth noticing that s.377 only criminalizes homosexuality between male. Hence while dealing with the issue that weather targeting male-male sexual conduct as opposed to male-female or female-female sexual conduct is unreasonable, the court answered this in negative. Court denied this comparison as illogical and implausible.

'Expression' given a wider meaning by the Indian Supreme Court:

One of the major disagreements put forth by the Singaporean SC was that the Indian Supreme Court had given a wider meaning to the word 'expression'. The judge observed thus:

"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. "

According to the Judge, such an expansive interpretation can potentially lead to absurd outcomes. He notes:

"If such an interpretation is adopted, it would mean that virtually any act could be protected under Art 14(1)(a) (of the Singapore Constitution) and this could not have been intended by the constitutional draftsmen. More specifically, sexual offences such as incest, pedophilia, necrophilia, or bestiality can arguably be covered by the Art 14(1)(a) umbrella as protected forms of "sexual expression"….This surely cannot be correct, at least not in the Singapore context where these acts remain criminalized."

Thus, the judge held that Article 14(1) of the Singapore Constitution does not afford a constitutional right to engage in male homosexual acts as a form of expression.

Singapore SC also disagreed with the view taken by SC in India in the case of Anuj Garg & Ors. v. Hotel Association of India & Ors., wherein the court opined that "legislation should not be only assessed on its proposed aims but rather on the implications and the effects". Singapore SC judge states that 'the Singapore Courts continue to subscribe to the traditional principles of judicial review and while testing validity of legislation it ought not take into consideration extra-legal arguments, regardless of how valid or plausible they may seem to be'.

Societal Disapproval Towards Male Homosexual Conduct:

In Navtej Singh Johar's judgement, the Indian SC held that constitutional rights cannot be dictated by majoritarian views and popular morality. Once it is brought to the notice of the Court of any violation of the Fundamental Rights of a citizen, or a group of citizens the Court will not remain a mute spectator, and wait for a majoritarian government to bring about such a change, Justice Indu Malhotra had observed. On the contrary to this observation, the Singapore SC has given primacy to the Parliament's decision to retain s.377A in the form that it is and concluded that there has been no change in the degree of society's disapproval towards male homosexuality as opposed to female homosexual conduct. 'The provision continues to serve its purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts', the judge said quoting from debates in Parliament.

Conclusion:

Singaporean Supreme Court in their judgement has disagreed with most crucial observation made by the Indian SC, that is that LGBTQ community has the same right of expressing themselves as any other couple. It does not matter how small or miniscule any community may be, they have equal to privacy which includes physical intimacy. Their choice of partner might be different from the popular belief, but they cannot be crucified for their choices. The Singapore SC has discredited these two points of observation by the Indian SC and has upheld the law criminalizing homosexuality between male.