A recent ruling by the New Delhi High Court reinterpreting Section 377 of the Indian Penal Code (IPC), which was devised to prevent and criminalise all sexual activity "against the order of nature", but especially homosexual activities, prompted Singapore’s Law Minister Mr. K Shanmugam to respond that although Singapore will not decriminalise gay sex, it will accede to the courts in Singapore, the power to decide how the law, is applied. (See Today’s report).
One common misconception is that the IPC Section 377 is similar to Section 377a of Singapore laws – but it is not. Singapore’s section 377a criminalises outrages of decency between males; IPC section 377 criminalises all “carnal intercourse against the order of nature with any man, woman or animal”. The New Delhi High Court ruled that although Section 377 would still apply to non-consensual sex and sex with minors, it should not criminalise private sexual relations between consenting adults as then, it would violate Article 21 of the Indian constitution, which states “that every citizen has equal opportunity of life and is equal before law”.
As for Section 377a, Prime Minister Lee Hsien Loong contented in 2007 that the “continued retention of Section 377A would not be a contravention of the Constitution”. If it truly was not a contravention of the constitution of Singapore, and as suggested by the Law Minister, should be decided how it is applied by the court of law, then, the recent case of the death of Brandon Boh Zhuang Min, would have been a good test case for the Attorney-General’s chambers to have brought up before the courts of Singapore, to determine how the courts will apply and interpret Section 377a.
Mr. Boh, a catering executive died 16 days after consuming a sexual performance enhancing drug, while on a threesome homosexual tryst. The case was investigated by the police and they found “unopened condoms and medication in the bedroom”, which would suggest that they were initially being investigated for homosexual activity, which would be criminal according to Section 377a, but eventually only a verdict of misadventure was pronounced on the death of Mr Boh. The report certainly seems to suggest that investigations were not confined to merely establishing the cause of death. If so, why did the Attorney-General (AG) not see it fit to bring one Mr Daniel to court to determine how the courts will apply Section 377a?
Private drug and sex parties have been a popular alternative to gay saunas and discos for many young gay men for nearly a decade; and mixing drugs, including alcohol with sexual activity has been shown to substantially increase the risk of transmitting HIV as safer sex practices are abandoned along with inhibitions. In the light of this, even if consenting individual gay men were not charged under Section 377a, so as not to send a ‘wrong message’ to the LGBT community, should not such group drug and sex orgies be targeted by the police and especially by the AG chambers to test how this particular law will be applied by the courts here to them?
“To have a law that they articulate they are not going to enforce really brings the law into disrepute”, said Dr Stuart Koe, Chief Executive Officer of Fridae.com even as parliament was debating the repeal of Section 377a in 2007. “Either put the gun down, or pull the trigger”, he said.