This article has been written by Megha Dalakoti. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).
Table of Contents
Introduction
In the judgment rendered by a Five Judges Constitution Bench of the Hon’ble Supreme Court in the case of Navtej Singh Johar v. Union of India wherein while overturning an earlier judgment by a Division Bench in the case of Suresh Kumar Koushal v Naz Foundation, the Hon’ble Apex Court decriminalized Homosexuality by stating that criminalizing consensual sex between all adults including Homosexual practices violates the Fundamental Rights enshrined in Part III of the Constitution of India.
This again brought into question the relevancy and legality of Section 377 of the Indian Penal Code (hereinafter referred to as “IPC” for the sake of brevity) under the scrutiny of eminent jurists, citizens, scholars, students and journalists alike. It is necessary to reproduce Section 377 of IPC to contemplate its necessity and validity, as under: –
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Explanation— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
With the aforesaid provision in mind, we proceed to examine, why is a provision which prohibits and penalizes sexual intercourse between a human and an animal, more commonly known as bestiality, necessary and valid? Further, what is the rationale behind such prohibition and penalties? Is it the non-existence of the element of consent on the part of the animal or the fact that such sexual activities are deemed to be against the order of nature or whether the element of public morality also bears relevance?
Interpretation of “against the order of nature” under Section 377 of IPC
It is a settled principle of interpretation that penal statutes are to be construed strictly and further, when there is no ambiguity in the language employed in a provision, there is no necessity of seeking the assistance of the object sought to be achieved. A plain reading of the Section 377 reflects that the criteria laid out for attraction of this section is when a person voluntarily has carnal intercourse against the order of nature with any man, woman or animal, such act becomes punishable under Section 377. The term voluntarily is self-explanatory and hardly requires any lengthy dissection to be understood in common parlance but the remaining portion naturally raises the question as to how precisely can something be determined as against the order of nature.
This question was dealt by the then Lahore High Court in 1924 in the case of Khanu v. Emperor where the Hon’ble Court had to decide whether the act of contacting male genitals with the mouth was an act against the order of nature or amounted to unnatural sex. The Court took the view in affirmative, basing such view on the reasoning that the natural object of sexual intercourse is reproduction or conception and hence, any such act which cannot result in conception of a child amounts to intercourse against the order of nature. Similar reasoning provided the canons of attack on the pleas seeking decriminalization of homosexual intercourse where it was vehemently contended that since homosexual carnal intercourse cannot result in the conception of a child, such act is against the order of nature and rightly penalized under Section 377 of IPC.
However, the Hon’ble Constitution Bench of the Hon’ble Supreme Court took a different view in the landmark judgment of Navtej Singh Johar v Union of India after considering the view taken by the Lahore High Court in the case of Khanu. The court observed that in Khanu v. Emperor, where the question before the Court was whether coitus per os (mouth contact with the male genitals) amounts to carnal intercourse against the order of nature, the Court ruled in the affirmative observing that the natural object of intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible. With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship.
A plain reading of the ratio decidendi of the aforesaid judgment makes it luminously clear that the explanation assigned to the words “against the order of nature” as something that has no possibility of conception is no longer a justiciable explanation. Hence, to consider the act of carnal intercourse between a human and an animal as “against the order of nature”, on the count that the same cannot result in conception of a child or reproduction, cannot be termed to be appropriate bearing the mind the ratio of the judgement rendered in the case of Navtej Singh Johar.
However, this brings us to the question of consent. Even though the word consent is not mentioned in the text of Section 377, since, the test of consent has been used to water down the section in the case of homosexuality; the same deserves a consideration while examining the case of Bestiality as well. It is undisputed that animals have no means of communicating their consent or willingness to experience a sexual encounter with human beings. Though one might also say that the animals do not have any means to communicate their unwillingness or to deny consent as well. Further, those advocating the rights of humans to adopt sexual practices as they like without encroaching on the rights of another human, also tend to say that if natural order and consent of animals is to be valued at such a high degree, all kinds of medical research would have to be stopped and next in line would be the meat and fisheries industry. Essentially, an acceptance of this logic would mean renouncing all scientific technology whether it be digital or medicinal as none of this existed in the “order of nature” and never once in the history of human race has consent of lab rats been obtained. Further, there are countries like Singapore which solely depend on sea-food and if they are denied access to sea food on the count of animal rights, the entire country would cease to exist. In a nutshell, their case being, if as humans, one does not shy away from slaving, torturing by pain and electrocution, slaughtering and even eating animals for their own needs, why be a hypocrite when it comes to using them for one’s sexual needs?
The third reasoning assigned by those advocating the “rights” of humans to engage with animals sexually to satisfy their urges revolves around public morality. In an ideal world, morality should not have any influence on legality and even at present in any country which is or strives to be a democracy in its true sense, the legal constitution takes superintendence over moral constitution. It is vehemently argued that public morality is for the acts of public and not for acts done in one’s bedroom in complete seclusion.
The champions of a liberalized approach towards curtailing any kind of sexual behavior scarcely miss the chance to point out the tragic mistreatment that was meted out to one Mr. Alan Turing who was an English Mathematician, crypto-analyst and Computer Scientist often regarded as father of theoretical computer science and artificial intelligence who is also credited with inventing the first general-purpose computer theoretically. The greatest contribution of Alan Turing came in World War II where he led a team of code-breakers who were tasked with breaking the German Communication Machine (i.e. Enigma) which was used to communicate all German and Axis Nation battle plans. According to a study conducted by one Professor Jack Copeland, World War II was shortened by two years and cost 14 million fewer lives solely because the team led by Mr. Alan Turing had managed to crack the Enigma machine. However, this international human hero was subjected to a chemical castration after being found guilty of Homosexuality which amounted to gross indecency as per the relevant laws in force in the United Kingdom at that point in time. This is just one of the millions of examples of people who have been mistreated, punished, penalized and driven to the point of seclusion and mental imbalance by the supposedly “moral” section of the society. Similar was the case of Mr. Alan Turing who ultimately committed suicide merely 7 years after saving 14 million men and women from the fate of an untimely death. Examples like these strongly demonstrate as to why law cannot be based upon morality but has to be in strict consonance with verifiable and quantifiable sciences and rationale.
Other contentions raised by those wanting to completely do away with Section 377 in respect of Bestiality point towards various researches that have confirmed inter-specie sex amongst animals. Incidences of Monkeys having carnal intercourse with deer have popped up in research conducted in various parts of the world. In certain parts of Columbia, in an uncanny tradition, Men begin their sexual journey by having intercourse with a donkey. Often, references are also made to sculptures in the temples of Khajuraho and Belladevi depicting Men and Women engaging in sexual activities with animals to indicate a presence of bestiality as an accepted practice in ancient India. Inevitably, the names of cross-breed mythological figures such as Rishyasringa and Narasimha also crop up in a bid to demonstrate that the curtailment on sexual practices with participation of animals is met with more restraining force now than it was thousands of years ago.
Reasoning behind prohibition on bestiality
The necessity and relevance of prohibiting and penalizing any act of bestiality i.e., carnal intercourse between humans and animals has to first addressed on the three cornerstones of being against the order of nature, consent and morality in sequential order.
Against the order of nature
While it is true that the earlier view regarding an act of carnal intercourse being against the order of nature if the same has no possibility of conception or reproduction has been negated by the Hon’ble Supreme Court in the case of Navtej Singh Johar. The same does not portray the entire picture and further examination of the judgment is required to understand the reasoning assigned while overturning the previous view taken by the Lahore HC. The Apex court observed, “Medical and scientific authority has now established that consensual same sex conduct is not against the order of nature and that homosexuality is natural and a normal variant of sexuality.”
A bare perusal of the aforesaid observations clarifies that the Hon’ble Supreme Court has relied on Medical and Scientific authority along with National and International Medical Standards to hold that attraction towards same sex is not unnatural and thus participation in the same with consent of parties involved cannot be termed to be against the order of nature. The key relevant findings arrived at by the Hon’ble Apex Court after examining various provisions of countries with diverse laws on the subject are enumerated in the said judgement.
The Hon’ble Supreme Court has declared Intimacy between consenting adults to be outside the legitimate interests of State as a measure to recognize the rights of sexual intimacy and preference of its subjects. However, when the observation regarding natural order meaning the possibility of conception is applied in the case of Bestiality, it becomes a flawed logic as the essential element of consenting adults is not present when one partner is an animal. In the case of homosexuality, the Hon’ble Apex Court took into account conclusive medical and scientific evidence from across the world to safely arrive at a finding that attraction towards similar sex is a natural behavior whereas in the case of carnal intercourse between Humans and Animals, the existence of conclusive medical and scientific evidence regarding attraction towards animals and more importantly, attraction in animals towards humans is not sufficient. Hence, the ratio decidendi of the judgment in the case of Navtej Singh Johar so far as it deals with the words “against the order of nature” cannot be made applicable while examining the validity of Section 377 of IPC in respect of Bestiality for the simple reason that the judgment nowhere considered the applicability of this section in cases where the element of consent is absent.
Consent
A valid consent has two elements i.e., unambiguous communication of consent and competence of consent. In the case of Bestiality, none of the two elements can be present. Neither the animals are competent to consent, nor can they unambiguously communicate their consent. The aspect regarding competence of content is in some manners similar to that in the cases of persons of unsound mind or minors who are incapable of making informed choices.
It is also necessary to touch the aspect of why consent is stressed about in the case of Bestiality but not in cases of torturing and slaughtering animals for medical research and consumption respectively. In this regard, it is profitable to quote from the decision rendered by the Hon’ble Supreme Court of India in the case of Animal Welfare Board of India v. A Nagaraja and others wherein the Hon’ble Supreme Court was concerned with the issues regarding the rights of animals under our Constitution, laws, culture, tradition, religion and ethology in connection with sports like Jallikattu, Bullock Cart Races etc.
Right to life
To understand the scope of Right to Life under Article 21 of the Constitution of India, the observations made by the Hon’ble Apex Court in the said judgment are of paramount importance, which is as under: –
“When we look at the rights of animals from the national and international perspective, what emerges is that every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity. Animals also have honor and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks.”
“Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity………….. So far as animals are concerned, in our view, “life” means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honor and dignity.”
A conjoint reading of the aforesaid paragraphs reflects that while stressing the importance of assigning a wider meaning to the term “life” in respect of animal rights, the Hon’ble Court also realizes that certain exceptions arise out of human necessity. Though a number of such exceptions can be thought of by any person of ordinary sense and prudence, we shall limit ourselves to the exceptions provided statutorily. The Prevention of Cruelty to Animals Act, 1960 (“PCA Act”) provides an exception to the acts of cruelty enumerated in Section 11.
These exceptions arise out of “Doctrine of necessity” such as the exception in subsection (e) which permits destruction of any animal as food for mankind so long as it is not coupled with unnecessary pain or suffering. Further, sub-section (d) exempts the operation of the penal provisions of this Act to any matter dealt with in Chapter IV which essentially regulates the Experimentation on Animals for furtherance of Scientific purposes. It is further submitted that these necessities are necessities of today and in all possibility shall not remain for eternity. As the example of the sea-food dependency of Singapore was cited in the averments justifying lack of consent, it is pertinent to mention that in December 2020, Singapore gave regulatory approval to sale of fully laboratory-grown meat. It is expected that such lab-grown meat will completely replace the use of meat obtained from Animal Slaughtering in coming decades. The point here being, such use of cruelty without the consent of animals which ultimately results in betterment of not only humans but the whole ecological system has been protected by law but such protection cannot form the plinth to fulfill perverse fantasies at the cost of mute and helpless animals. Thus, “Doctrine of Necessity” cannot be used as a smokescreen to perpetuate an imaginary “Doctrine of Perversity”.
It is also pertinent to refer to internationally recognized legal rights of animals that find their place in the Guidelines issued by the World Health Organization for Animal Health (OIE) which is recognized by World Trade Organization as reference organization dealing in Animal Health and Welfare. India is also a member of both the World Trade Organization as well as OIE. Under the Guidelines of OIE, five kinds of freedoms have been identified for animals i.e., Freedom from hunger, thirst and malnutrition; fear and distress; physical and thermal discomfort; pain, injury and disease; and to express normal patterns of behavior.
So far as carnal intercourse between humans and animals or bestiality is concerned, it can expose animals to fear, distress, physical discomfort, pain, injury, diseases and also is outside their normal patterns of behavior. The Hon’ble Supreme Court, in the case of Animal Welfare Board v A Nagaraja equated these five freedoms for animals to the Fundamental Rights enshrined in Part III of the Constitution of India for citizens.
Public morality
As discussed earlier, the law cannot be based upon morality but has to be in strict consonance with verifiable and quantifiable sciences and rationale, hence, public morality bears no relevance in prohibiting Bestiality and penalizing the offenders of Bestiality.
Recognition of animals as legal entity
Animals have traditionally been identified as property in the context of Indian Law and various statutes. However, a landmark shift in this trend was effectuated by a judgment rendered by the Hon’ble High Court of Punjab and Haryana in the case of Karnail Singh and others v. State of Haryana wherein it was held that all avian and aquatic animals are required to be conferred with the status of legal entity/legal persons. It is a late but welcome shift in the way Indian laws have deemed animals to be a property for so long whereas the status of legal person has been conferred on Companies, Corporations, Societies, Trade Unions, even Deities and Idols long before animals got their due. The status of a legal person essentially means such entities that can be said to have certain rights and duties and once conferred, enables such entities to sue or be sued. In the case of animals, the Learned Single Judge assigned elaborate reasoning as how despite there being no feasible form of communication between animals and humans, the same will not act as an impediment in granting the status of legal entity/legal person to them and the Courts will be assisted in such cases in an identical manner as it is done in cases of persons with unsound mind or minors i.e., through a guardian.
Conclusion
The legal position pertaining to Order of nature, Consent, Animal Rights and Freedoms, Prevention of Cruelty to Animals Act, Doctrine of Necessity etc. has already been dealt with insufficient details to arrive at a conclusion that Section 377 of the Indian Penal Code is both necessary and valid so far as it relates to prohibiting and penalizing the acts of Sexual Intercourse between humans and animals, it is still for the legislature, judiciary and society as a whole to introduce further stringent measures to even prohibit all kinds of sexual advances made on animals and not just carnal intercourse which means penetration in terms of the explanation attached with Section 377. In the hope that the future holds more security and protection for animals, I end this discussion the way it began, by stating the definition of law as “Law is logic in motion”. From viewing the animals as property to the conferment of the status of legal entities, law in India in respect of animals has moved leaps and bounds, and hopefully goes further ahead in recognizing further rights.
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