CNA Explains: The history of 377A and how some countries have repealed it

When was 377A introduced and why?

Section 377A was introduced to Singapore’s Penal Code in the middle of 1938 when it was under British rule.

It 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 two years.”

The law was generally believed to have derived from the British government’s desire to “safeguard” public morality by prohibiting homosexual activity in the Straits Settlements. 

However, a legal team that sought to repeal the law in Singapore in 2019 argued that documents from the British National Archives suggest that Section 377A was originally intended to curtail the spread of male prostitution, and not consensual private sexual acts between men.

The documents showed that male prostitution was a widespread problem in the area at the time, especially among British civil servants. 

In its assessment of the evidence in that attempt to repeal the law, the courts said the legislative purpose of 377A was not to stamp out male prostitution but to “safeguard public morals generally”.

Indeed, the origins of Section 377A stretch back to 1860, when it was first codified as Section 377 in the Indian Penal Code by the British empire as “carnal intercourse against the order of nature with any man, woman or animal”.

It was then exported to at least 39 British colonies across Asia, the Pacific islands and Africa.

Penalties range from two to 20 years in prison but in places that have also implemented Sharia law, LGBT people can also face more severe punishment such as flogging.

Which countries have repealed the law, and which have not?

Former British colonies that have repealed the legislation include India, Seychelles and Fiji.

In 2018, India’s highest court unanimously struck down part of Section 377 of the Indian Penal Code, which outlaws same-sex relations, following 17 years of legal challenges mounted by activists.

In the landmark judgment, India’s Supreme Court ruled that it was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”.

“Criminalising carnal intercourse under Section 377 (of the) Indian Penal Code is irrational, indefensible and manifestly arbitrary,” said then-Chief Justice Dipak Misra in his delivery of the unanimous verdict on Sep 6, 2018.

Evolving social attitudes towards LGBT issues have also been attributed to the repealing of 377.

In 2011, India included a “third gender” category – in addition to the male and female options – in its census forms for the first time.

Bhutan decriminalised homosexuality last year, making it legal to have gay sex and easing restrictions on same-sex relationships.

The move by the majority-Buddhist nation of 800,000 people came after other Asian countries including India and Nepal relaxed restrictions on the rights of LGBT people.

According to researchers, much of Bhutan’s penal code was adopted from US laws. However, there are parts about sodomy and “unnatural sex”, which appear to be identical to language in other penal codes around South Asia that was copied from the Indian Penal Code.

Besides Singapore, former British colonies where 377 continues to exist in various forms include Malaysia, Brunei, Pakistan, Bangladesh, Sri Lanka and Myanmar.