unnatural offences

Tshewang Dema: Unnatural Offences

INTRODUCTION

“Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles.”

In India, sexuality is a question of silence. Drawing on Focault, there is “a focus on the Conspiracy of silence regarding sexuality in India, whether within political and social movements or in scholarships, blinds us to the multiple sites, where sexuality has been long embedded”.[1]  The section 377 of the IPC basically deals with maintaining heteronormativity. The British colonial intervention and the emergence of the Indian nation flowed together to produce the same effect, that of erasing homoeroticism and naturalising heterosexuality in India.

Unnatural offences cover all homosexuality offences as well as the non-consensual penile non vaginal sex and penile vaginal sex involving minors. Questions have been raised constantly on the constitutionality of the above-mentioned section. The most recent one was put up in the case of Navtej Singh Johar v. Union of India.[2]

Section 377 refers to unnatural offence and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to pay a fine. This section 377 of IPC introduced in 1862 during the British rule of India. Against the order of native is illegal previous to that there was no laws governing sexual intercourse in India. This section 377 of IPC makes criminals out of homosexuals, section 377 is not merely a law about ANAL SEX alone, but it applies to homosexuality in general.

 Lack of consent-based distribution in the offence has made homosexual sex synonymous to rape and equated homosexuality with sexual perversity. Section 377 is the biggest affront to the dignity and humanity of substantial minority of Indian Citizens. It was one of the biggest outcomes and enjoyment of right for those people in their entire life. This judgement made proud and gave dignity to them for the first time and made them feel proud.

On 6 September 2018, the Supreme Court of India ruled that the application of section 377 to consensual homosexual sex between adults was unconstitutional or decriminalized, irrational, indefensible, and manifestly arbitrary but there is an exception though the supreme court has rightfully protected animals under against attempts by humans who have intercourse with them, that still remain under the preview of crime. The decriminalized of sodomy contribute directly to restoring the dignity of homosexuals and allow the LGBTQ [especially gay] moment to emerge from the shadows.

India joined 125 nations where homosexuality is legal as supreme decriminalized gay sex. The supreme court decriminalized consensual intercourse between persons of the same sex and read down section 377 of IPC. Thus providing a huge boost to the LGBTQ community Of India.

WHAT IS UNNATURAL OFFENCE?

The word ‘unnatural’ means contrary to nature, abnormal but not spontaneous.  ‘Voluntarily’ requires that unnatural offence must be accompanied by intention. As the word ‘Carnal’ implies something relating to the physical, especially the sexual needs and the activities.

WHAT IS SECTION 377?

Section 377 of Indian Penal Code is a 157-year-old colonial law which criminalized homosexuality in India. The section was introduced in the year 1864 while India was under British Colonial rule. The wrongs committed in relation to section 377 came under the ambit of ‘Unnatural Offences’.

Unnatural offences are covered in IPC under section 377. Section 377 of the IPC states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine”.[3]

As per the explanation provided under this section penetration is sufficient to constitute the carnal intercourse. This section corresponds to the offences of sodomy and bestiality under the English law. As evident from the language of this section, consent is wholly immaterial in the case of unnatural offences and the party consenting would be equally liable as an abettor. This section is very vague as what is against the order of nature is not possible to define objectively. What is natural and what is not is a subject of debate and has led to much confusion. As per this section[4] homosexuality is construed as an unnatural offence as it is against the order of nature. This has led to many controversies and has led to questions regarding the constitutional validity of this section. Thus, to determine the constitutional validity of this section and the reasons for its incorporation in the IPC it is important to look at its historical basis.

ESSENTIALS TO UNNATURAL OFFENCES

  1. There must be “voluntary carnal intercourse.”
  2. It must be “against the order of nature – it may be with any man or woman or animal.”
  3. There must be a presence of “penetration.”

*if these essential are met then that particular act is offensive under section 377 of IPC.

TYPES OF NATURAL AND UNNATURAL SEX OFFENCE

A. Unnatural Sex Offence[5]

i. TRIBADISM / LESBIANISM: Female homosexuality

ii. BESTIALITY: Sexual intercourse with the lower animals

iii. SODOMY / BUGGARY: Anal intercourse with a male or female. Only proof is semen in anus.

B. Natural Sex Offence[6]

i. INCEST: Coitus with blood relatives. It is not punishable in India.

ii. RAPE

  • When the victim is less than 16 years of age, the sexual intercourse in any case amount to be rape.
  • The consent or non-consent doesn’t arise as a woman of only 16 years and above can give a consent of sexual intercourse and this has been described by the as Statutory rape.
  • The slightest penetration of penis within the Vulva with or without the emission of semen or rupture of hymen is required.
  • Rape can be committed even when there is inability to produce the erection of penis.
  • Rape on virgin cause tear at postero –lateral aspect of hymen.
  • In India, there is no age limit under which a boy is considered physically incapable of committing a rape.
  • Medical proof of intercourse is not a legal proof of rape.
  • Rape is a cognizable offence.
  • Under the law, rape can only be committed by man and woman cannot rape a man
  • Except in France where even a female can be charged of rape.
  •  In India, a woman can be charged to have a woman can be charged to have committed ‘INDECENT ASSAULT’ on a man.

PUNISHMENT[7]

  • Imprisonment for life,
  • Or ten years an in addition to fine.
  • This is Non – Bailable
  • As the cognizable offence and triable by Magistrate First Class
  • This offence is not compoundable.
  • If an offence is cognizable police has the authority to arrest the accused without a warrant and to start an investigation with or without the permission of a court
  • Otherwise Police does not have the authority to arrest the accused without the warrant and an investigation cannot be initiated without the court order .
  • If an offence is bailable the police has the authority to release the accused on a bail on getting the defined surety amount along with a duly filled bail bond at the concerned police station.
  • Otherwise the arrested person has to apply for the bail before the Magistrate or Court.
  • If an offence is compoundable, a compromise can be done between the accused and the victim and the trail can be avoided.
  • Otherwise no compromise is allowed between the accused and the victim .
  • Except under the certain situation where the High Court or the Supreme Court have the authority for quashing matter.

HISTORY OF TRACING SECTION 377 OF IPC

The Indian Penal Code was drafted by Lord Macaulay and was introduced in 1861 during the British time. Thus, it has been largely influenced by the British laws. What was considered crime in Britain at that time was also been made crime under IPC to a large extent. “Acts of sodomy were penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British colonies”.[8] Thus, Section 377 of Indian Penal Code derives its origin from the Buggery Act of 1533. It is important to note here that this law has not been amended by Parliament ever since its enactment.

This law is based on Judeo-Christian moral and ethical standards which conceive of sex on purely functional terms, that is, for procreation and on this basis homosexuality is considered as unnatural and against the order of nature. For the purpose of implementation of Section 377 it becomes important to determine what is natural and what is unnatural. Also, it becomes necessary to determine whether homosexuality is against the order of nature or not.

There is a misconception amongst most of the people that Section 377 has been repealed, but that is nowhere close to the truth. S. 377 has only been watered down and now sexual activity of whatever nature among consenting adults, is not punishable under the law. In doing so the court has introduced the element of consent as a ground for exemption from criminal prosecution under Section 377. Non-consensual sexual activity among adults; and all sexual activity irrespective of consent with minors or with animals continues to be a punishable crime.

In addition to Section 377, POCSO Act, 2012[9] also provides blanket protection to minors against sexual offences.  Dilution of Section 377 is a much awaited and welcome move, as earlier this provision was utilized as a tool for harassing people with unconventional sexual orientation. Adults can make their own choices and decisions. Law needs to be invoked only in the absence of consent. Penalising consensual sexual acts among adults amounts to a clear violation of their right to life, personal liberty and privacy. No modern State can afford to continue with such oppressive laws and India is no exception.[10]

THE INDIAN STATE, JUDICIARY AND SECTION 377

The language of “against the order of nature” in section 377 provides little indication that it is directed towards particular sexual subjects. The commentary attached to section 377 indicates that the law is meant to punish sodomy, buggery and bestiality; in other words, targeting sexual practices rather than sexual subjects who come to embody socially constituted perversities in the form of homosexual. Increasingly the state became sites of giving new ideas and “truths” about sexuality.

There is a nagging inconsistency between seeing section 377 as a node in the production of state power and arguing that it is a prevalent site for the legal regulation of same sex sexual subjects. Section 377 case law suggests that few cases of same sex adult sexual activity are prosecuted in the higher courts. But what is certain is that section 377 is wielded as a threat against sexual minorities. The question which the Indian Judiciary has been trying to deal with since 1860 is to determine what exactly constitutes “carnal intercourse against the order of nature”.

The meaning of section 377 in 1884 was restricted to anal sex, by 1935 it was broadened to include oral sex and the judgements in contemporary India have broadened it to include thigh sex. The lack of a consent-based distinction in the offence has made homosexual sex synonymous to rape and equated homosexuality with sexual perversity. If we are to search for a principle which holds together all these sexual acts can be found as early as in 1935. In the Khanu vs Emperor case,[11] the court laid down that “the natural object of sexual intercourse is the conception of human beings which in the case of coitus per so (oral intercourse) is impossible”.

IMPLICATIONS OF SECTION 377 OF IPC

The idea of sex without the possibility of conception has been used for the last 140 years to characterize homosexuality as a perversion, as an abhorrent crime, results of a perverted mind etc. The judicial understanding of section 377 only legitimises and reinforces state power to persecute and harass those of an alternative sexual identity.

The real danger of section 377 lies in the fact that it permeates different social settings including the medical establishment, media, family and the state. Thus it becomes a part of the ordinary conversations and ultimately of the overall social fabric. This creates an environment where violence against queer people acquires a legal sanctity. Section 377expresses deep social repugnance towards queer people and provides the fig leaf of legitimacy for the harassment of queer people by friends, family as well as other societal and governmental institutions.

The criminalization of homosexuality, by condemning into perpetuity an entire class of people forces them to live their lives in a shadow of harassment, humiliation, and degrading treatment at the hands of the law enforcement machinery, further denying them the right to a full moral citizenship.

CHALLENGES TO SECTION 377: REASONS FOR EMERGENCE OFCHALLENGES[12]

The barbaric section 377 which criminalizes homosexuality, a very natural orientation, can be considered inhumane at the least, framed to protect the sexuality, relationships, family and ultimately society. But in spite of same sex orientation being a hush hush topic and section377 being defended on the ground of being a guarantee against rape of women and child sexual abuse, it has been challenged. The main reasons for the emergence of the challenge areas follows-

  1. In Foucaldian terms, the lesbian and the gay communities asserted themselves paradoxically because of the operation of section 377 of the IPC since after all power elicits its own resistance.
  2. The Marxists have stated that the gay and lesbian identities emerged because of the spread of capitalism, since capitalism allows for the breakdown of traditional structures.
  3. The emergence of the discourse of Universal Human rights contributed to the emergence of LGBT activism on the grounds to be given equal rights and opportunities as being human.
  4. The emergence of new social movements. The move started with the birth of feminism.
  5. At a more pragmatic level, the HIV/AIDS pandemic and the consequent identification of high-risk groups such as MSM has greatly opened up spaces for discussion and work around sexuality Whatever the complex reasons for the emergence of the queer movement in the Indian context, its institutional history is very short, spanning activism of a little over two decades. As network of groups began to form, the collective nature of assertion emerged as the community started responding to issues of direct concern through public protests against extortion and violence as well as questioning unjust colonial laws.

CONSTITUIONAL CHALLENGES TO SECTION 377 0F IPC

The constitutional validity of section 377 was challenged in the Delhi High Court in the case of Naz Foundation v Government of Delhi & Ors.[13] In this case it was argued that s 377 on account of covering consensual sexual intercourse between two adults in private, is violative of the fundamental rights guaranteed in Articles 14, 15, 19 and 21 of the Constitution. It was also contended that Article 21 can be curtailed only in case of compelling state interest which is missing in this case.[14]                                                                                                      

The petitioner also contended that the legislative intent behind section 377 is based on stereotypes that are outmoded and have no historical or logical backing.[15] They also argued that the expression “sex” as used in Article 15 also includes “sexual orientation” and thus according to Article 15 there can be no discrimination on the basis of sexual orientation. Broadly they prayed before the court that section 377 of IPC should be declared ultra vires to the constitution, insofar it criminalizes consensual sexual acts of adults.

The two wings of Union of India filed completely counter affidavit in this case. The Ministry of Home Affairs sought to justify the retention of section 377 on the grounds of public health, public disapproval, and social disgust of the act. On the other hand, The Ministry of Health & Family Welfare supported the claim of petitioners stating that the presence of section 377 in the statute book has hampered the HIV/AIDS prevention efforts and that its deletion would help in treating homosexuals suffering from HIV/AIDS.[16]

The Delhi High Court rejected the contention of Ministry of Home Affairs on the ground that popular morality or public disapproval cannot be a valid ground for restricting the right under Article 14 and 21. The court stated that if there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality. India is a land of unity in diversity and our constitution drafters recognised this idea and incorporated it in our constitution in the form of various articles which recognises, protects and celebrates diversity.

Section 377 of IPC by criminalising homosexuals only on account of their sexual orientation violates the constitutional morality. In the end, court accepted all the contentions of the petitioners and declared the part of section 377 ultra vires which criminalised consensual sexual acts of adults in private. However, the court also ruled out that the provisions of section 377 will still continue to govern non-consensual penile non-vaginal sex involving minors.

This order of the Delhi High Court was challenged before the Supreme Court in the case of Suresh Kumar koushal and another v Naz Foundation & others[17] by groups of religious bodies and individuals including the All-India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council. They contended that section 377 was enacted by the legislature to protect social values and morals. The Supreme Court accepted this contention and set aside the order of the High court.

The court stated that every legislation enacted by the Parliament or State legislature carries with it a presumption of constitutionality. This principal also applies to pre-constitutional laws. If no amendment is made to a particular law it may suggest that the legislature deems it fit and leave the law as it is. Post-independence almost 30 amendments in the IPC have been made in the IPC including amendments in the chapter of sexual offences under which unnatural offences fall.[18]

 “However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision”.[19] The court ultimately declared section 377 to be constitutionally valid. However, the court left it opens for the Legislature to delete or amend the law. The Naz foundation has filed a curative petition challenging this judgement of Supreme Court. The matter is sub judice before the Supreme Court. However, as of now, section 377 is constitutionally valid and homosexuality is treated as an unnatural offence. Since, this section is operative as of now it becomes pertinent to see the sentencing policy in cases of unnatural offence.

THE LANDMARK JUDGMENTS ON SECTION 377

Also Read: THE RISE OF RAINBOW : LGBTQI

A number of incidents had led to vulnerability of transgender, transexuals. Gays, lesbians, bisexuals, asexual as a result of section 377. This was one of the main reasons which lead to confidential or sexual activities amongst LBGT, and Aids spread vastly. There were many cases which eventually suppressed the rights of the LGBT community. Way back from 1884 itself, where gender identity became a ground for prosecution which can be seen in the case of Queen Empress v Khairati[20] which was the first report case of a crime under section 377 of IPC.

There has been a tendency in India courts to create an association between the sexual acts and certain kinds of persons, who are more likely to commit the act thereby giving a character and face to sodomy in the form of a homosexual.[21] So the interpretation of the courts upon homosexuals has slowly developed a path to throw this group into the fire of hatred, disapprove and disgrace to the society. This is the initial stage where this sexual minority group started facing problems.

The situation is this, the AIDS Bhedbhav Virodhi Andolan (ABVA) on 11th August 1992, had protested against all the harassment and criminalization of the suspected homosexuals under sections 72 and 73 of the Delhi Police Act. In the same year, many petitions were sent to the petitions committee of the parliament seeking for the decriminalization of the same by repealing Section 377 of IPC.[22]

However, in 1994 after filing a petition to repeal section 377 of IPC and also challenging the act of non-supply of condoms to the jailers present in Tihar Jail, New Delhi. The authorities in spite of knowing the homosexual activities being carried out in that jail ignored their request to be provided with condoms. This was violating the whole purpose of NGOs promoting the prevention of HIV/AIDS.

Later on, AVBA became defunct soon after and the petition did not come up for hearing. It was only in 2001 that the legal process regarding the repeal of Section 377 was revived with the filing of a petition by Naz Foundation (India) Trust. It was bringing the legal position of the homosexual community in India to the forefront.

From here on there were a series of cases, fighting the battle against section 377 of IPC, 1860. Even after the constant filing of a petition by AVBA to decriminalize section 377 it was ignored to be heard and due to this, there was a death of a jailer who was suffering from AIDS. There was much opposition who were of opinion that homosexuality was not relevant to Indian culture and thus should not be encouraged. Also many argued that sex amongst homosexuals would lead to the spread of AIDS in the country. But the NGOs consistently pleaded that in fact not allowing the homosexual activities freely would cause AIDs which they were hoping to reduce and prevent by allowing the LGBT community the right to have consensual freely and in safe manner.

In the light of the above, petition was filed by the Naz Foundation, an NGO in the Delhi High Court as a Public Interest Litigation – challenging the constitutional validity of section 377 of IPC, 1860 on the account that it violates the sexual activities of consenting parties guaranteed under the fundamental rights in article 14, 15, 19 and 21 of the Indian Constitution.[23]

But the petition was rejected by the Delhi High Court on the ground that the Naz Foundation had no locus stand in this issue. Later on, the supreme court of India directed the Delhi high court to consider the matter as it was a matter of public importance and cannot be set aside on such grounds. In 2004 this was again presented before the court as a fresh petition. In the case, Nazi Foundation v Government of NCT of Delhi and Ors.[24] the petitioners argued in favour of the third gender that section 377 was creating a vulnerable and criminalized due to the said provision and it was held unconstitutional.

Sexual orientation depends on one’s own gender identity and is a core part of it. And it is clear that a person’s sexual relations and intimacy can be considered as so private that it comes under the ambit of “right to privacy under the right to life and dignity”. By imposing legality of section 377 of IPC, a person’s fundamental right under article 21 is being infringed. The further argument stated that by interpreting section 377 solely as against homosexuals and confining the term “unnatural sexual acts” as homosexuals act a separate class had been created i.e., procreative acts and non-procreative acts which has no reasons or rationale nexus with the interpretation.

Later for the sake of better understanding of the judgment given out up the Supreme Court in the case of Navtej Singh Johar v. Union of India[25] involving section 377 of Indian Penal Code. The court while delivering the judgment laid down the following aspects, the highlights of the judgment of the case-

  • Section 377 of IPC is arbitrary and irrational and hence it is liable to be struck down partially to the extent to which it criminalizes consensual sex between two adults.
  • The court however laid down that a person indulging in any kind of sexual activity with that of animals will still be a criminal offence under section 377 of IPC.
  • Sexual orientation being a biological phenomenon, any discrimination which solely made on this ground would be held to be violative of fundamental rights of the citizens.
  • The LGBT community owns the same fundamental and human rights as others and shall not be discriminated in any way.
  • It is the duty cast on the court to protect and uphold the dignity of each and every individual in the society, the right to live with dignity is a fundamental right granted to each and every citizen by the Indian Constitution.
  • Section 377 of IPC was indeed used as a weapon to harass the members of the LGBT community and they were discriminated as against other citizens which would no longer continue to exist.

SURESH KUMAR KAUSHAL[26]

Soon there was a petition filed against the Naz Foundation case. It is in the Suresh Kumar Koushal v. Naz Foundation & Ors (2014) 1 SCC 1 decided on 11th December 2013, the court overruled the above judgement saying that section 377 of IPC is not unconstitutional and stating that the section gives us the act and anyone who performs the said act would be criminalized as per section 377, when the Supreme Court’s verdict on re-criminalising gay sex was given effect, Suresh Kumar Kaushal was considered to be the face of such a development. The revised verdict of the court which came out in December 2013 was seen as a severe blow on the LGBTQ community. After the Delhi High Court came out with the judgment of decriminalising homosexuality in 2009, Suresh Kumar Kaushal mobilized with Krantikari Manuwadi Morcha, Trust God Missionaries and the All India Muslim Personal Law Board and filed a petition of the purpose of re-criminalising the gay sex. Speaking to The Hindu, Suresh Kaushal expressed his views that the prime motive behind taking up such a step was that it was a ‘religious issue’ and according to him homosexuality is something which is simply unnatural and once gay sex was decriminalised, a lot of gay men and lesbians started approaching temples and gurudwaras for marriage. They had to further put a ban on this as marriage in every religion will have to follow certain rituals.

WHY DOES DECRIMINALISING IT MATTER?[27]

Taking a look at the data it can be stated that while there are various instances which show that section 377 was indeed used to harass the LGBTQ community, it would be rather astonishing to note that a majority of the population who make use of that section are the married women who have been abused and physically tormented by their husbands and relatives. The section of 377 is invoked by them along with that of 498A while filing a complaint for the commission of unnatural offences. Again following the same pattern the research data of the states of Bihar, Haryana and Uttar Pradesh show that these victims are tortured and discriminated and not paid proper attention when they approach a police station to seek an end to their grievances.

It can further be stated that section 377 criminalised a group of people for being a sexual minority. Now, when this section of people approach the court to seek justice it is not just demanding protection as sexual minorities, but a need to recognise their inherent characteristics as to what they actually are. They moreover lay down the argument that right to sexuality, the right to choose a partner and sexual autonomy is something that leads to the formation of a cornerstone of human dignity. And section 377 is said to have a chilling effect on the right to equality, liberty, dignity, life and non-discrimination based on the ground of sexuality.[28]

UNANIMOUS VERDICT: Navtej Singh Johar

Hence there were curative petitions filed which the Supreme Court agreed to hear and a petition challenging the Suresh Kumar Koushal’s case was filed by Navtej Singh Johar and four other personalities who were the supporters of LGBTQ community, in the year 2016. And surprisingly, on 24th August 2018 the famous case of Justice K.S. Puttaswamy (Retd) v. Union of India[29] came up, which decided that “right to privacy as a fundamental right” falling into the purview of “article 21 of the Indian constitution”. This boosted up the hopes of the LGBTQ community and the case of Navtej Singh Johar v. Union of India[30] was presented before the Supreme Court.

The court based its view on certain principles like the emphasis on “gender identity” and “sexual orientation” from the judgement of National Legal Services Authority v. Union of India (2014) 5 SCC 438, sexual intercourse and orientation was considered as a private activity and hence fits within the ambit of right to privacy, considering LGBTQ community as sexual minorities and thus any constitutional provision or law cannot be based on majoritarian principle as the rights of the third gender are original, absolute and real founded on the sound constitutional principle as decided in Puttaswamy case.

On the basis of the above principles and the central government’s affidavit which left the decision upon the court’s wisdom, the Supreme Court on 6th September 2018 gave its verdict declaring section 377 as unconstitutional, unreasonable, irrational and arbitrary. That is, the consensual sex amongst the adults is legal but the rest of section 377 i.e., consensual or non-consensual sex amongst minors and bestiality being an offence under section 377 of IPC.

Ultimately, this was the case that threw light upon the problems of the third gender and declared that they are no more criminals in the eyes of law. They were lawfully and rightfully provided with what their rights were and with what they actually deserved from the very beginning. Thus, the section now punishes all kinds of unnatural offences like bestiality, rape of minor etc. but what was excluded from the purview of this section was the consensual sexual intercourse between the same-sex people only if they are adults who have attained the age of majority and are capable of making sound and informed decision on their own for themselves.

IMPACT OF DECRIMINALISING HOMOSEXUALITY

  • Sexual minorities in India are one step closer to living with dignity.
  • LGBTQ Community will be able to come out in the open with their sexual preferences.
  • Discrimination faced by them in accessing health and their harassment by Police will cease.
  • Decriminalisation has also been associated with more self-acceptance as well as psychological and emotional security among LGBTQ Community.
  • This judgement will spur LGBTQ Community to demand more progressive laws like Gay marriage laws, right to form partnerships, inheritance, employment equality, protection from gender-identity-based discrimination among others.
  • The judgment has opened up grey areas, and guidelines will be needed to deal with cases where, say, a gay individual withdraws “consent” and lodges a complaint against the partner. India’s laws on sexual assault do not recognise men as victims of rape.

CONCLUSION AND SUGGESTION

As already stated above, the language of the section 377 is very vague and arbitrary. It is impossible to determine what the order of nature is and what is not. In view of such vagueness, homosexuality has also been treated as against the order of nature. The judgement given by the Delhi High Court in Naz foundation case was a very laudable judgement.

Amidst all the dissents and disfavour put in the course of the judgment of homosexuality, considering it on a larger perspective it is usually seen as a victory to the LGBTQ community and it further upholds the ideology that with the evolution of time the country is moving on a dynamic phase, making the age-old colonial practices which no longer fall in line with the current situation.

I would suggest reforms on the line of Delhi High Court judgement but with a different reasoning. Delhi High Court judgement essentially ruled out that parts of section 377 are unconstitutional as they violate articles 14, 15 and 21 of the constitution. The Delhi High Court never stated that homosexuality is not against the order of nature; it rather stated that section 377 violates the fundamental rights of same sex adults who have consensual relationship.

I would suggest that section 377 should be struck down as a whole as the term order of nature is very arbitrary and vague and its meaning is not capable of being made certain. In cases of sexual acts such as paedophilia and bestiality, new provisions should be enacted. The scope of Section 375 should be enlarged so as to include sexual assaults against both boys and girls and the meaning of penetration should be enlarged so as to include forms of penetration other than penile vaginal. In the case of minors, section 377 is ineffective as penetration is required to constitute offence under it. Parliament has however enacted Protection of Children from Sexual Offences Act, 2012 which also covers sexual abuse against children.

BIBLIOGRAPHY

  • https://blog.ipleaders.in/decriminalising-homosexuality-section-377-india/
  • https://timesofindia.indiatimes.com/blogs/legally-speaking/unnatural-offences-decrypting-the-phrase-against-the-order-of-nature/
  • https://www.lawctopus.com/academike/unnatural-offences-under-the-ipc/#_ftn14
  • https://www.legalbites.in/unnatural-offences-essentials-explanation-constitutionality-377/#_ftn23
  • https://www.drishtiias.com/to-the-points/Paper2/to-the-point-paper-2-section-377-judgement
  • https://indianexpress.com/article/opinion/columns/the-afterlife-of-section-377-gay-sex-lgbt-rights-supreme-court-judgment-5549111/

[1] The Times of India, Unnatural offences: Decrypting the phrase, ‘Against the order of nature’ available at: https://timesofindia.indiatimes.com/blogs/legally-speaking/unnatural-offences-decrypting-the-phrase-against-the-order-of-nature/ (visited on March 18, 2021). Unnatural Offences

[2] W.P. (Crl.) No. 76 of 2016

[3] Section 377 of Indian Penal code (Act of 45 of 1860).

[4] Section 377 of Indian Penal code (Act of 45 of 1860).

[5]  Classification of sexual offence, Sexual Perversion, available at: https://gradestack.com/Dr-BhatiaMedical/Classification-of-Sexual/Classification-of-sexual/15824-3166-7651-study-wtw (visited on March 20, 2021).

[6] Ibid

[7] Section 377 of Indian Penal code (Act of 45 of 1860).

[8] Naz Foundation v. Govt. of NCT, 2010 CrLJ 94.

[9] The Protection of Children From sexual Offence Act of 2021 (Act of 32 of 2012).

[10] The Times of India, Unnatural offences: Decrypting the phrase, ‘Against the order of nature’ available at: https://timesofindia.indiatimes.com/blogs/legally-speaking/unnatural-offences-decrypting-the-phrase-against-the-order-of-nature/ (visited on March 20, 2021).

[11] 1891 ILR BOM 194B.

[12] Ipleader, Decriminalising Homosexuality in India, available at: https://blog.ipleaders.in/decriminalising-homosexuality-section-377-india/ (visited on March 24, 2021). Unnatural Offences

[13]  Naz Foundation v Government of Delhi & Ors, (2010) Cri LJ 94 (Delhi).

[14]  Ibid

[15] Ibid

[16] Ibid

[17] Suresh Kumar Koushal v. NAZ Foundation, AIR 2014 SC 563.

[18] Suresh Kumar Koushal v. NAZ Foundation, AIR 2014 SC 563.

[19] Ibid

[20] (1884) 6 I.L.R. All 205

[21] Arvind Narrain, Envisioning Global LGBT Human Rights, 45 (Nancy Nicol et al., 2018). 

[22] Vimal Balasubrahmanyan, Gay Rights in India, E.P.W., February 3, 1996, at 257.

[23] Naz Foundation v. Government of NCT of Delhi & Ors 2009 (111) DRJ 1 (DB)

[24] Ibid

[25] (2018) 1 SCC 791

[26] Suresh Kumar Koushal v. Naz Foundation & Ors (2014) 1 SCC 1

[27] Ipleader, Decriminalising Homosexuality in India, available at: https://blog.ipleaders.in/decriminalising-homosexuality-section-377-india/ (visited on March 24, 2021). Unnatural Offences

[28] Legal Bites, Unnatural Offences: Essentials, Explanation & Constitutionality of 377, available at: https://www.legalbites.in/unnatural-offences-essentials-explanation-constitutionality-377/#_ftn23 (visited on March 25, 2021).  Unnatural Offences

[29] (2017) 10 SCC 1

[30] 2018) 1 SCC 791

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