KARTIKEYA JAISWAL and PRANAY MODI

Introduction

‘Freedom of expression’ is a fundamental right guaranteed  by the constitutions of several democratic countries. It is an internationally recognised ‘human right’ and finds mention in Article 19 of the Universal Declaration of Human Rights (UDHR) . But while the right exists on paper, its actual extent, in different countries, depends entirely on the interpretation accorded to the words by those jurisdictions.

Sexual orientation and gender identity are pertinent examples here – whether the freedom of expression covers them or not depends entirely on the legal interpretation of ‘expression’.  In certain countries, the constitutional interpretation of this right has enabled the legal recognition of sexual orientation and gender identity as human rights. In others, it has led to the continued criminalisation of sexuality and gender identity  

Issue

Recently, the Singapore High Court, while deciding the constitutionality of Section 377A of the Penal Code – having implications on the legalisation of homosexuality – was faced with the question; does freedom of expression include sexual orientation? The court, vide Ong Min Johnson v. Attorney-General answered  in the negative; and its analysis was in stark contrast to the analysis of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the question was answered in the affirmative. 

Singapore

Section 377A of the Penal Code criminalises ‘acts of gross indecency’ between men in public or private. In Johnson, the question arose:  does Article 14(1)(a) of the Singapore Constitution – which protects the freedom of expression – encompass sexual orientation as well? To answer the question, the Court applied the Tan Cheng Bock framework – a three-pronged method deployed for the interpretation of statutes.

First, the court considered the context in which ‘expression’ was used within the legal code as a whole (para 245). It determined context by noting the marginal note accompanying Article 14, which reads “Freedom of speech, assembly and association:. The absence of the term ‘expression’ from the marginal note, was interpreted as a clear indication that the expression was not a stand-alone right. ‘Expression’ must be read with ‘speech’and must “necessarily point towards some form of verbal communication”. Thus, ‘expression’ under Article 14(1)(a) protects “freedom of speech encompassing matters of verbal communication of an idea, opinion or belief and not male homosexual acts”(para 255).

Second, the court considered the legislative purpose of enacting the term ‘expression’. It noted that when the constitution was adopted, there was no reference to a free-standing right of expression and ‘expression’ was only used in furtherance of the right to free speech (para 257).

The third prong of the test – comparing purpose with ordinary meaning – only reinforced the court’s interpretation, that ‘expression’ only includes expression in the form of speech. Thus, the court concluded that Article 14(1)(a) does not confer the “right to engage in male homosexual acts as a form of ‘expression’”. 

India

The approach adopted by Justice See Kee Oon of the Singapore High Court, towards the interpretation of Article 14(1)(a), is in stark contrast to the approach adopted by the Supreme Court of India, while interpreting Article 19(1)(a) of the Indian Constitution – which is in pari materia to Article 14(1)(a) of the Singaporean Constitution. 

In 2014, the Indian Supreme Court – in a judgement which conferred legal validity to the identity of transgender individuals -had held that Article 19(1)(a) guarantees not just speech, but also the “natural rights inherent in the status of the citizens of a free country”. 

This expansion of Article 19(1)(a) allowed the Supreme Court to adopt a natural rights approach in Navtej as well. The court observed that “sexual orientation is one of the many biological phenomena which is natural and inherent” and any law which discriminates on the basis of such an inherent property of identity, would violate Article 19(1)(a) of the Indian Constitution.

Analysis

Despite being common law courts, there is a fundamental difference in the way both jurisdictions conferred meaning to the term ‘expression’. These diametrically opposite conclusions are a function of the method of interpretation adopted, rather than any normative opinion on homosexuality. 

In Singapore, the court adopted a textualist approach and stuck to the core meaning of ‘expression’, refusing to consider the penumbra of meanings. At the heart of the judgement is the belief that the judicial process simply does not allow for the kind of social progress sought by the petition. 

The Indian Court, on the other hand, disregards the fetters of textual limitations and expands the scope of the text. It confers meanings on ‘expression’ found beyond the core and within the penumbra. This expansionist approach – dubbed ‘transformative constitutionalism’ – enables the progression of rights. It displays the willingness of the Indian court to push the envelope and take up the mantle of social progress for itself.

Conclusion

Although to decide whether one of these approaches is better than the other is a matter for posterity. But for now, what is clear is that the Singapore High Court is not regressive in its normative morality, but simply that it is strict in its judicial process.

Nevertheless, the implications of this judgment on Singapore’s LGBTQI community – and their human rights – cannot be ignored. While the Singapore High Court has maintained the propriety of the judicial process and the separation of powers by leaving it to the legislature to take the final decision, it has failed to give immediate relief to LGTBQI persons. The continued denial of their human rights is predicated upon the continued persistence of Singaporean peoples’ political right to a disciplined judiciary. In this deadlock, it is incumbent upon the Singaporean Parliament to step in and protect the human rights of Singapore’s LGBTQI community, in line with the international standards of the UDHR and the Yogyakarta Principles.

Even though the Singapore High Court has given adequate reasoning by deeming it fit for the legislature to scrap Section 377A; expanding the scope of ‘freedom of expression’ would have sent a strong message, both domestically and internationally, as the LGBTQI community keep on fighting for their basic human rights.

Kartikeya Jaiswal and Pranay Modi have studied law from Jindal Global Law School in New Delhi, having graduated in August 2019. While Kartikeya is a lawyer based in New Delhi, Pranay is a Research Fellow at Vidhi Centre for Legal Policy, New Delhi. Follow Pranany’s work on twitter @Pranay_Modi