Authored by Shilpa BA Law student from Ramaiah Law College Bangalore
“Race, gender, religion, sexuality, we are all people and that’s it. We’re all people. We’re all equal.”
LGBTQ+ is the acronym for lesbian, gay, bisexual, transgender and questioning are the terms used to describe a person’s sexual orientation or gender identity. Many nations have legalized this concept where as it still remains a taboo in few other nations. In India, the Apex Court decriminalized the law pertaining to LGBTQ+ and the same judgment was referred to the Singapore High Court and the Court of Appeal where they criminalized this concept with a sanction. Something that the Singapore High Court and Court of Appeal failed to understand is that homosexuality is driven by chromosomes and genetics, and not just by choice but merely God’s creation. Quoting the famous character “Shikandi” from the great epics of time “Mahabharata” who was born as a girl but was definitely a “He” later on. It is just the approach and psychological setting of ours that needs to understand and accept their condition and include them in the society.
LGBTQ+, Homosexual, Humanity, Repeal, Freedom of Expression
The Recent Developments
The moment one talks about the dark moments in the judiciary system few in-famous cases that immediately strike our minds- one such that is Dred Scott v. Sanfordwhere the US Supreme court denied the right of equality to blacks. Another is the Indian Supreme Court decision in the ADM Jabalpur v. Shivakant Shuklawhere it denied the fundamental rights of citizens against the emergency imposed by then Prime Minister Indira Gandhi. The recent Supreme Court’s order in the Suresh Kumar Kaushal and Another vs NAZ Foundationwhere the Supreme Court upheld Section 377 of the Indian Penal Code, which penalizes any “carnal intercourse against the order of nature”. Realizing its infamous orders all have been however overruled.
In recent Supreme Court of Singapore judgment in Ong Ming Johnson V. Attorney General and Other Matters is quite similar to the infamous case of Suresh Koushal v. Naz Foundation that evoked a bitter response from the public worldwide due to its failure in upholding the interests of the LGBT Community. However subsequent to that the landmark-famous Indian Supreme Court’s Judgement in Navtej Singh Johar v.Union of Indiachanged the whole perspective of judiciary saving larger numbers of LGBT group in the country. It observed that homosexuality; bisexuality or any other sexual interest is natural and is not a physical or mental illness. Section 377 violates the whole purpose of Article 21 of the Indian Constitution upholding individual’s dignity and his or her gender identity. After continuous discrimination and abuse being faced by the LBGT community the court affirmed that it leads to the violation of various fundamental rights including freedom of expression, right to privacy, equality, liberty and dignity. Any act done by the LGBT community does not disturb the public order or moral values until it is not obscene. Section 377 need not be retained as it does not connect with the criteria of proportionality thus violating the fundamental right of expression of the LGBT community.
Analysis and the Way Forward
The judgment given by the Supreme Court of Singapore is absurd and clearly lacks fairness. The traditional principles applied while testing the constitutionality of Sec.377A makes it understandable that the court has refused to look into the future where the world is constantly changing with times. It is the duty of the judiciary to make sure no fundamental rights of a citizen are violated that is beyond the majoritarian views and parliament’s action. Many developed nations have started accepting homosexuality but this decision by the top court of Singapore has definitely disappointed the wider LGBT community in Singapore, who had approached the court with new evidence of how Indians have accepted the change that came in through Navtej Singh Johar v.Union of Indiaand still the ruling has shattered the hopes of LGBT Community in Singapore simply because of their sexual orientation or gender identity. There is no shortcut solution that can address the problems faced by LGBT people across the world. Hence it is time for the Court of Singapore to Repeal Section 377A. we must realize that LGBT (Lesbian, Gay, Bisexual and Transgender) are also homosexual people of our country. They are not different hence it is time to respect the individualism. Homosexuality should not be treated as a crime or misfortune of one. The Indian Supreme Court welcomed the LGBT Community and many such other nations have accepted the new change in the growing world.
The main objective of human rights rests on the central premise that all humans are equal. Every human having dignity it’s important that all humans are to be treated equally. Anything that threatens such dignity is the violation of principle of equality and paves way for discrimination. With today’s economic growth and increased globalization of Singapore, it is becoming more and more difficult for the nation to shelter itself from changing views worldwide on civil rights, human rights, and homosexuality. Though Singapore is known for its integrated and exposed to the systems and values of an increasingly globalized world, its citizens are beginning to demand space to express themselves and their beliefs. Hence it becomes the primary duty of the Courts and Judiciary to intervene so as to preserve and protect the values enshrined in the nation’s constitution.
You’re a rainbow. Radiant and Unique. You’re not a disease to be cured. You’re normal, stand on the side of the rainbows with dignity.
You’re HUMAN first. You’re welcomed.
Suresh Kumar kaushal and another v. NAZ FoundationCIVIL APPEAL 10972
 Ong Ming Johnson v. Attorney-General and other matters SGHV 63
Navtej Singh Johar v. Union of India, 10 SCC 1