Consensual Homosexual Sex: Critical Analysis of Interpretation by Indian and Singapore Courts

In 2018, the Supreme Court of India unanimously held section 377 of the Indian Penal Code, 1860,that criminalized consensual homosexual sex as unconstitutional. Inspired by this view, petitions were filed before the Singapore Court to decriminalize section 377A. But on 30th March 2020, the Singapore Court upheld the colonial-era law that criminalized homosexuality between two consenting adults and held that S.377A of the Singaporean Penal Code does not violate Articles 9(1), 12(1) and 14 of the Constitution and hence held the section constitutional and disagreed with the interpretation of the Indian Supreme Court in decriminalizing the section that violated one’s basic rights provided by the Constitution. This paper critically analyzes the judgment delivered by the Singapore Court on criminalizing consensual homosexual sex, wherein a special mention of the recent judgment given by the Indian court decriminalizing the same had been highlighted. The paper takes into account historical differences between the two countries on the concept of homosexuality and provides a comparative analysis of the interpretation of Article 12 and 14 of the Constitution by the respective courts. Finally, this paper focuses on the need for the Singapore courts to divert their primary focus on traditional principles to govern the judiciary and shift to basing judgments on the spirit of the Constitution and human rights.