This article is written by Sukhmandeep Singh, a law student at the Guru Nanak Dev University, Amritsar. This article explains what unnatural sexual offences are, what provisions are related to them, important judgments, and the POCSO Act provisions that are related to them.
This article has been published by Sneha Mahawar.
In our world, generally, men are attracted to women and women to men. It means most people are attracted to people of the opposite gender or sex. Along with this majority, there exists a minority who are attracted to people of the same sex or gender. This minority is known as the LGBTQ community. LGBTQ is an acronym that stands for “Lesbian, Gay, Bisexual, and Transgender.” The people who are part of this community are known as homosexuals, whereas others are known as heterosexuals. When there was carnal intercourse between two same-sex persons, then previously it was considered to be an unnatural sexual offence.
Homosexuality has been in existence for thousands of years and is attested in several religious and cultural literatures. In earlier periods of time, being homosexual was considered a sin, as the people had to confront this with the whole society, which was against homosexuality. People’s thinking has advanced in the twenty-first century, and everyone has the right to marry as well as the right to choose his or her life partner. But even with a changing mentality, LGBTQ community members face discrimination in almost every place. Some members of this community are even afraid to express their preferences for fear of being judged by society. There have been instances where they have been forcefully married by their families to protect their dignity in society. In the US, consensual sexual intercourse was declared valid and not against the law in 2003.
Homosexuality is still a crime in many countries around the globe. In the recently held FIFA World Cup in Qatar, even the logo of the LGBTQ community was not allowed in the stadiums, which is also the latest example of discrimination against the LGBTQ community. In India, until 2018, sexual intercourse between the same gender or sex was a crime under Section 377 of the Indian Penal Code (IPC); as in this Section, sexual intercourse between the same gender or sex was seen as an unnatural sexual offence. To decriminalise this offence, the first petition was filed by the AIDS Bhedbhav Virodhi Andolan in 1994.
History of the legislation
There are several favourable portrayals of same-sex couples and transgender gods in Indian Vedic texts. Ancient Greece and Rome also had similar views and likewise accepted same-sex relationships, and at that time, homosexuals were not prosecuted until there was a rise in the influence of Christianity in history. The history of this legislation dates back to the 19th century, when India was ruled by the British. India’s modern criminal law was drafted way back in 1861 by Lord Macaulay, who drafted the Indian Penal Code of 1860. As the Indian Penal Code was drafted by Britishers, it had many provisions similar to the English law of that time. If there was any Act that was declared unlawful by British laws, then that same Act was also declared an offence in the IPC. One example of such a law is Section 377 of the IPC.
This Section of the IPC is quite similar to England’s Buggery Act of 1533 and is thus said to be derived from the same. In this Buggery Act, the act of sodomy was declared unlawful between homosexuals as well as heterosexuals. Sodomy means anal or oral intercourse between human beings, especially those of the same gender or sex, or between a human and an animal. The act of sodomy was declared unlawful and thus, offenders were hanged to death. The word ‘sodomy’ was borrowed from the book of Genesis found in the Bible, which meant ‘city of sin.’ ‘Sin’ means an action that is not allowed by religion. Later, in 1563, this Act was re-enacted by Elizabeth I, which led to the formation of similar laws in British colonies. Thus, on this basis, homosexuality was declared an unnatural offence, which led to the drafting of Section 377 in India.
During the earlier period, as the influence of Christianity increased, there was an increase in the number of nations that declared sodomy unlawful, especially in European nations. Although it is not prohibited in all countries, there are nations like Poland that have never declared sodomy or homosexuality unlawful. As time passed, many nations that had earlier declared homosexuality unlawful willfully changed their laws, and France was the first European country to repeal its anti-sodomy laws. Later, many nations took the same step and passed legislation accepting their right. But, till now, there are many nations that still do not give LGBTQ community members their rights.
Types of unnatural sexual offences
As we know, unnatural sexual offences have been present in our society since time immemorial. It is important to know and understand the types of unnatural sexual offences. These are the following:
- Tribadism/ Lesbianism
- Sodomy/ Buggery
It refers to female homosexuality. ‘Lesbian’ is a term used to describe women who are romantically or sexually attracted to other women. Sexual intercourse involving two women or persons with vulvae is referred to as ‘tribadism.’ Sexual intercourse is typically between a man and a woman; tribadism is considered against the order of nature and thus falls under the category of unnatural sexual offences.
It refers to carnal intercourse between a person and an animal. Under this type too, there is an act that is considered against the order of nature and, thus, not legal.
Under this type, consent also plays a huge role. It is said that consent has two parts, i.e., communication and competence to consent. Under bestiality, neither of these two parts is there. The animals can’t communicate their consent and are not competent to give their assent clearly. With humans, too, when someone is not competent enough to give consent, we do not consider that consent. So, similarly, in this case, too, consent cannot be considered valid.
A sexual penetration other than vaginal intercourse is defined as sodomy. Sodomy laws mostly target gay men. Nowadays, generally, the term ‘sodomy’ refers to anal sexual intercourse between two men, a man and a woman, or a man and a kid, male or female, which is similar to rape. This act is also considered against the order of nature and, thus, an unlawful sexual offence.
What are the legal provisions dealing with unnatural sexual offences in India
Sexual offences are covered in the IPC from Section 375 to Section 377.
Section 375 of the IPC defines “rape” and various provisions related to it. Section 376 of the IPC puts light on the punishment given for the offence of rape under various conditions. Section 377 of the Indian Penal Code is the only Section that deals with unnatural sexual offences.
According to Section 377 of the IPC, if any person, against the order of nature, voluntarily performs carnal intercourse with any man, woman, or animal, then that person is said to have committed an unnatural sexual offence. Whoever commits an act, as defined by Section 377 of the IPC, will have to face life imprisonment or imprisonment of any kind for a period of up to ten years, as well as a fine.
In this Section, only penetration is sufficient to hold someone liable.
Meaning of the phrase “against the order of nature”
In Section 377 of the IPC, the phrase “against the order of nature” is used. The order of nature is something that is expected and occurs in normal life. If any artificial or man-made act is done and the events do not occur as normal, then it is said to be against the order of nature.
But as there is no proper definition present, it is hard to determine which action is in the order of nature and which is not. In the Khanu v. Emperor (AIR 1925 Sind 286) case, the court observed that, naturally, the purpose of sexual intercourse is pregnancy and, further, to conceive a child. The court then defined ‘sexual intercourse’ as ‘the temporary visitation of one organism by a member of the other organism, for certain clearly defined and limited objects.’ It means sexual intercourse is done for some limited purposes as well as to achieve some clearly defined goals. So, the court held that if conceiving a child is not the purpose of intercourse, then the act is said to be against nature’s order. The court interpreted the laws related to unnatural acts to include bestiality, consensual gay sex, and child sexual abuse.
With the changing of the times, interpretations of the court have also changed. Earlier, only anal sexual intercourse was considered unnatural, but after Khanu v. Emperor, oral sexual intercourse was also declared unnatural. According to the most recent interpretation by the courts, penile penetration through artificial orifices has likewise been considered unnatural. The court’s interpretation has gone so broad that sometimes it leads to the tyrannical application of this law. In literal terms, this interpretation declares sodomy, bestiality, paedophilia, homosexuality, and teen sexual abuse as punishable. The only type of sexual intercourse it does not include is heterosexual penile-vaginal intercourse; the rest are declared unnatural.
In Brother John Antony v. State (1990), the petitioner was a boarding home’s sub-warden who had the duty of taking care of inmates. The sub-warden was alleged to have committed unnatural acts with the boys, who were inmates. The acts were done in such a way as to create an orifice-like thing to create manipulated movements by inmates. Therefore, the court held the sub-warden liable as per Section 377 of the IPC.
Essentials of Section 377 IPC
There are three important essential elements of Section 377 IPC that must be fulfilled to make someone liable under this section:
- The offender must have had carnal intercourse with a man or a woman (modified, discussed later) or an animal.
- The offensive act committed must be against the order of nature.
- The offender must commit the act voluntarily and with his or her own free will.
In the case of G.D. Ghadge v. State of Maharashtra (1980), it was held that even the least degree of penetration is sufficient, and proof of completion of the act is not required. ‘To penetrate’ in this Section means ‘to enter or pass through or force passage into or through.’ According to the explanation attached to the Section, penetration, no matter how little, is necessary to establish carnal intercourse.
Decriminalisation of Section 377 IPC
There have been a large number of petitions and PILs filed in different courts around the country seeking the decriminalisation of Section 377 of the IPC. However, there were some important judgments that led to the final decision regarding the decriminalisation of Section 377 of the IPC.
Naz Foundation v. Government of NCT of Delhi (2009)
In the case of Naz Foundation v. Government of NCT of Delhi, the decision was taken by the Delhi High Court’s Divisional Bench. In this case, consensual sexual intercourse was declared no longer a crime. This decision was given on the basis that Section 377 violates the fundamental rights of homosexuals.
Significant findings in this case
- The court held that Section 377 of the IPC is violative of the right to privacy of all the persons involved in such acts. Article 21 of the Indian Constitution provides us with the right to privacy and the right to live with dignity, and homosexuals should also be given these rights.
- Article 14 of the Indian Constitution was also taken into consideration while decriminalising Section 377. The court held that categorising people based on their gender violates Article 14 because Article 14 addresses the right to equality in the country and also provides for equal access to every human just because of being a human being. So, we can say that Section 377 is violative of Article 14.
- The court also held that Section 377 of the IPC is violative of Article 15 of the Indian Constitution, as according to it, no one should face discrimination based on sex. In this Section, “sex” does not refer to only biological gender but also sexual orientation, and discrimination based on sexual orientation was seen in Section 377.
- The court held that Section 377 also hinders homosexuals’ right to fully realise their identity in society. This violates Article 19(1)(a) of the Indian Constitution, i.e., freedom of speech and expression.
- Section 377 was also found to violate the Universal Declaration of Human Rights.
So these are some of the findings of this case that led to the decriminalisation of Section 377 of the IPC by the Delhi High Court’s Divisional Bench.
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (2013)
The above judgement in Naz Foundation v. Government of NCT of Delhi was challenged in the Supreme Court on the basis that this liberal judgement by the Delhi High Court goes against India’s religious and cultural beliefs. The judgement of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. led to the overturning of the previous judgement of the Delhi High Court.
Significant findings in this case
- The Court held that Section 377 does not specifically target any group but rather specific sexual acts that are against the order of nature.
- The Court held that only a small number of cases had been filed charging members of the LGBTQ community members, and it would be too early to declare Section 377 of the IPC unconstitutional.
- The Court was not on the same page that the LGBTQ community faces discrimination, blackmail, etc., due to this Section.
- The Court held that “the mere fact that the Section is misused by police officers and others is not a reflection of the Section’s virtues.” It means that even if it is misused by police officers, that is not proof that this Section’s power is ultra vires.
With all these findings, the court held that Section 377 is constitutional and overturned the Delhi High Court’s judgement.
National Legal Services Authority v. Union of India (2014)
In the case of National Legal Services Authority (NALSA) v. Union of India, the court put the utmost priority on psychological sex rather than the biological sex of the person. The court had negative views towards gender recognition based on biological sex and gave importance to psychological sex after going through many countries’ laws on this issue.
Major findings in this case
- The Court, in this case, observed that transgender people and international treaties related to them must be acknowledged, and if they are in line with fundamental rights, they should be followed. Recognising transgender people’s identity also helps in the case of decriminalisation of Section 377 of the IPC.
- The Court observed and declared that the transgender population is expected to receive legal recognition under ‘third gender’ and that the state must work on the same. Along with this, they are also given the freedom to choose their self-identified gender, i.e., in Article 21 of the Constitution.
- The Court also held that Article 19(1)(a) of the Indian Constitution protects the right to privacy, gender identity, and integrity of all.
- Along with the above, many more rights were also given to transgender people under this judgement.
Justice K.S. Puttaswamy v. Union of India (2018)
The case, Justice K.S. Puttaswamy v. Union of India, was heard by a 9-Judge Bench. In this case, Justice D.Y. Chandrachud admitted a mistake made by the Supreme Court in the Suresh Koushal v. Naz Foundation case. In this case, the Supreme Court ruled that sexual orientation is part of the right to privacy, i.e., Article 21, and no one can infringe on this right.
Navtej Singh Johar v. Union of India (2018)
Navtej Singh Johar v. Union of India is a landmark judgement that gave clarity over the interpretation of Section 377 of the IPC. A five-judge bench comprising CJI Deepak Mishra, J. Indu Malhotra, J. RF Nariman, J. A.M. Khanwilkar, and J. D.Y. Chandarchud heard the case. In this decision, the Supreme Court decriminalised any type of consensual sexual intercourse among adults in private, including homosexual activities.
Major findings in this case
- In this case, the court held that a distinction must be observed between consensual and non-consensual acts by adults, either heterosexual or homosexual, and also held that if the acts are consensual, then the acts need not be classified as an offence under sodomy, etc.
- The court also focussed on the NALSA judgement along with the Puttaswamy judgement and acknowledged that the right to sexual orientation is an important part of the right to privacy.
- The Supreme Court agreed with the decision made by the Delhi High Court in the Naz Foundation case that ‘sex’ in Article 15 of the Indian Constitution means sexual orientation as well as biological sex.
- The court, under its ruling, held that sexual orientation is inherent and natural. The decision will be taken by LGBTQ persons to either engage in intimate sexual relations with persons of the same sex or not, and this will be interpreted as their statement of autonomy and their power of self-determination of their sex.
- The Supreme Court, while giving its judgement, dismissed the argument that the decision would increase the number of AIDS and HIV cases and is also immoral for Indian society. The Supreme Court held this argument as unreasonable, untenable, and arbitrary.
Thus, the Supreme Court, under its 5-Judge Bench judgement, held Section 377 unconstitutional if the act is consensual, i.e., with consent, regardless of the sex of the individual. The court also observed that consent must be free, voluntary, and without any type of pressure. Although it was not deleted from the Constitution of India, an unnatural sexual act is still an offence if it takes place without the consent of either party to the act.
Provisions under the POCSO Act
The POCSO Act stands for the Protection of Children from Sexual Offences Act, 2012. This act deals with the protection of children against sexual offences. This act relates to unnatural sexual offences as well. This Act is gender-neutral and deals with both male and female children. Important provisions are as follows:
Section 3: This Section defines ‘’penetrative sexual assault.’’ The definition of this section is similar to the definition of rape given in Section 375 of the IPC. The only difference is that the POCSO Act is gender-neutral, whereas rape, as covered in the IPC, covers only female victims.
Section 4: This Section deals with punishment for the offence committed, as given in Section 3. This Section holds the offender liable and orders punishment of imprisonment, which should be not less than 10 years or extend to life imprisonment. Along with imprisonment, a fine will also be imposed. If the offence is committed on a child under the age of 16 years, then the imprisonment should not be less than 20 years or can extend till the natural life of the offender. A fine will also be imposed. Fine imposed would be given to the victim and should be adequate to cover the victim’s medical expenses.
Section 5: Section 5 of the POCSO Act defines when penetrative sexual assault becomes aggravated penetrative sexual assault.
Section 6: In this Section, punishment for aggravated penetrative sexual assault is provided. If anyone is found guilty under Section 5, he or she will be punished with rigorous imprisonment of not less than 20 years, and it can extend to imprisonment till natural life. A fine will also be imposed. In this Section, the punishment of death can also be given.
So, these are the provisions of the POCSO Act, which can also deal with unnatural sexual offences against children.
Unnatural sexual offences have been in the spotlight for many years now. Various interpretations of the laws have been made, and their extent has also been studied. There is still a need to make provisions with clear wording that exhibit the extent of the operation. Although, with the passing of Navtej Singh Johar’s judgement, many things have been made clear, and various rights have been given by the Supreme Court to the LGBTQ community. Consent has been declared a key feature to determine whether an act is constitutional or unconstitutional. In my opinion, the use of the word “penetration” limits the scope of this Section, and many offences continue to remain in the grey area.
Frequently Asked Questions (FAQs)
Is an offence under Section 377 IPC a bailable offence?
Yes, the offence covered under Section 377 of the IPC is bailable.
When and why was Section 377 IPC decriminalised?
Section 377 of the IPC was declared decriminalised in 2018 with the passing of the Navtej Singh Johar v. Union of India judgement. It was decriminalised in cases where consent was present on the basis that Section 377 violated Articles 14, 15, 19, and 21 of the Indian Constitution.
Can a wife file a case against her husband for unnatural sexual offences?
Yes, the wife can file a case against her husband for an unnatural sexual offence if he commits such an act without her consent. She can file a case under Section 377 of the IPC, which prohibits sexual intercourse if it is against the order of nature. Such an act can also act as the basis for divorce.
In India, are same-sex marriages legal?
The answer to this question is no; as of now, they are not legally recognised. But on January 6, 2023, the Supreme Court ordered the transfer of all the cases related to the recognition of same-sex marriage. The Supreme Court also gave the government four weeks, i.e., February 15, 2023, to clarify its position on the same.
In this regard, in the United States of America, the House of Representatives granted final approval to legislation allowing for the legal recognition of same-sex marriages.
Is Section 377 IPC applicable to child sexual abuse?
Yes, Section 377 of the IPC is applicable to child sexual abuse too. The reason is that the consent of those under 18 years is not taken as valid consent, and thus, as no valid consent is present, it is an offence. However, it does not cover child sexual abuse to the extent that the POCSO Act does. In Section 377, penetration is a must, whereas under the POCSO Act, even if penetration is not there, the offender can be held liable. And also, the POCSO Act has many provisions that would be beneficial for the child in cases of sexual abuse.
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