Unnatural Offences: Essentials, Explanation & Constitutionality of 377

Unnatural Offences: Essentials, Explanation & Constitutionality of 377 | Overview

• Introduction to Unnatural Offences
• Penetration: What act is considered as penetration as per law
• Constitutional Validity: Third Gender and Section 377
• Recognition to the LGBTQ People

This article focuses on what is known as unnatural offences, its related section in the Indian Penal code. What exactly does penetration mean to attract section 377? Further, as the concept of consent was immaterial, the question of the constitutionality of section 377 with respect to the third gender was discussed in detail.

The judgements which lead to decriminalising of homosexuality is explained in this article. It gives brief information about what else is made punishable under this section after the respective changes made to section 377.

I. Introduction to Unnatural Offences

The law recognises certain offences to be unnatural. The offences provided in section 377 are categorised as unnatural offences.^[1]

“Section 377 Unnatural offences— 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 also be liable to fine.

Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section

As the Indian Penal Code drafted under the “Chairmanship of Lord Thomas Babington Macaulay” and hence the offence under section 377 was considered as an offence corresponding to the offence of sodomy and bestiality under the English law.

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 essentials are met then that particular act is offensive under section 377 of IPC.

II. Penetration: What act is considered as penetration as per law

In the case of State of Kerala v. Kundumkara Govindan (1969) Cr LJ 818 (Ker), the Kerala High Court tried to interpret what can be “carnal intercourse” and “penetration”, as they are nowhere defined in the penal code of India. The court decided the intercourse here means a sexual relation rather than a social one.

And penetration was considered as “fine access into or through, pass-through” as per the dictionary meaning. Thus it was interpreted as “insertion in any place, fir or thrust”. Holding this the court decided that even the act of committing intercourse between the thighs is also known as carnal intercourse against the order of nature and held liable under section 377.^[2]

As the explanation says, the slightest penetration also would be considered as sufficient to attract section 377. The only thing which it requires is the act to be against the order of nature.^[3] The conviction too cannot be made unless and until the section has been charged.

In the State of Maharashtra v. Shankar Krisanrao Khade, 2009 Cr LJ 73 (Bom), the victim was subjected to rape and carnal intercourse before she was murder by the accused, the court, however, rejected to hold the accused convicted under section 377 as the trial court did not charge the offence of sodomy under section 377 in that particular case.^[4]

Further, the court of law has decided in various cases that “penile-anal”^[5], “penile-oral”^[6] and “penile-animal”^[7] penetration was considered as “carnal intercourse against the order of nature” and punishable under section 377.

Keeping these things aside, even the consensual sexual relationship between two people who have attained majority was also covered under section 377, if it was against the order of nature. This triggered the intercourse between two men or two women or third gender as such to be “against the order of nature”.^[8]

III. Constitutional Validity: Third Gender and Section 377

The above section criminalizes the carnal intercourse which is against the order of nature. This is thus interpreted as the carnal intercourse amongst same-sex people and criminalized homosexuality and sexual orientation amongst that group even though there is consensus.

A number of incidents had led to vulnerability of transgender, transsexuals, gays, lesbians, bisexuals, asexual as a result of section 377^[9]. This was one of the main reasons which lead to confidential or secret sexual activities amongst LGBT 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 (1884) 6 I.L.R. All 205^[10] which was the first reported case of a crime under section 377 of IPC.

A person who was described as ‘eunuch’ and it was her transgressive gender that implicated Khairati as a potential criminal under section 377^[11]. The above case points out that in any legal record in colonial Indian period there is a large absence of transgressive gender and also the absence of a history of lives and stories of those who were persecuted on grounds of their gender identity^[12].

There has been a tendency in Indian 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^[13].

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 11^th 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^[14].

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 also brings the legal position of the homosexual community in India to the forefront^[15].

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 homosexuals to do sexual activities freely would cause AIDS which they were hoping to reduce and prevent, by allowing the LGBT community the right to have consensual sex freely and in a safe manner.

In the light of the above, a 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^[16].

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, Naz Foundation v. Government of NCT of Delhi and Ors.^[17] The petitioners argued in favour of the third gender that section 377 was creating a vulnerable class of people who were being victimized and criminalized due to the said provision.

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 has been created i.e., procreative acts and non-procreative acts which has no reason or rationale nexus with the interpretation.

Thus, there is a violation of the fundamental right to equality of the homosexuals under article 14. And also in article 15, the term “sex” may also include sexual orientation and so stating that section 377 is discriminative on the ground of sex as per article 15.

Apart from the above, the section is also violating the fundamental right to association, assembly or to move freely with reference to homosexual acts or conduct, under article 19^[18]. The LGBTQ community people were deprived of those rights and even the right to go to court for exercising their fundamental right to constitutional remedies as the section 377 of IPC was creating a chilling effect on sexual minorities.

After a detailed study of the above case, the court decided and passed the judgement in favour of the LGBTQ community. By giving it a prospective effect the court ruled “section 377 as violative of article 14,15,19,21 of Indian constitution” and held unconstitutional that part of the section which criminalizes the consensual sex amongst the adults (LGBTQ) and would continue to be constitution in the case of non-consensual sex amongst adults, consensual and non-consensual sex amongst minors and bestiality.

Soon after the above judgement, 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^[19] Decided on 11^th 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.

IV. Recognition to the LGBTQ People

The Suresh Kumar Koushal case stated that if section 377 was considered unconstitutional then it would lead to the perception that a valid law may become invalid with the passage of time. They even argued that the differentiation between ordinary sexual activities and unnatural sexual activities were intelligible and held that it is not violative of Article 14.

Also, many cases were cited in article 21 but no proper reasoning was provided to prove the constitutionality of section 377 of IPC. Finally, the court left it to the parliament to decide the rights of the minorities with reference to the majoritarian principle^[20]. Many citizens expressed their disapproval to this judgement and soon it was a problem which had a national concern.

Then a landmark judgement of case National Legal Services Authority v. Union of India^[21] was decided on 15^th April 2014. This case ruled that transgender to be considered as “third gender” and gave them a legal identification by stating that they must be treated equally and granted all the fundamental rights which they were prior deprived of.

This was the verdict which brought about recognition to the LGBTQ community people and helped them to have their self-identity. This case also laid emphasis on “gender identity” and “sexual orientation” which expressly declared that homosexuality is not a disease or abnormality but uniqueness in unlike amongst the alike. They are also part of human society so a certain amount of respect and humanity must be delivered towards this group.

Unanimous Verdict: Freedom to the questioned being

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 24^th August 2018 the famous case of Justice K.S. Puttaswamy (Retd) v. Union of India^[22]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^[23] 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^[24].

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 6^th 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.

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^[1] Indian Penal Code 1860, s 377

^[2] State of Kerala v. Kundumkara Govindan (1969) Cr LJ 818 (Ker)

^[3] Gorakh Daji Ghadge v. State of Maharashtra 1980 Cr LJ 1380 (Bom)

^[4] State of Maharashtra v. Shankar Krisanrao Khade, 2009 Cr LJ 73 (Bom)

^[5] Lohana Vasntlal Devchand v. State AIR 1968 Guj 252

^[6] Calvin Francis v. State of Orissa (1992) 2 Crimes 455 (Ori)

^[7] Khandu v. Emperor AIR 1934 Lah 261

^[8] Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94 (Delhi)

^[9] Geetanjali Misra, Decriminalising Homosexuality in India, 17 R.H.M. 20-28, 21 (2009).

^[10] Queen Empress v. Khairati, (1884) 6 I.L.R. All 205

^[11] Queen Empress v. Khairati, (1884) 6 I.L.R. All 205

^[12]Arvind Narrain, Envisioning Global LGBT Human Rights, 45 (Nancy Nicol et al., 2018).

^[13] Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, 41 E.P.W. 4815-4823, 4816 (2006).

^[14] Vimal Balasubrahmanyan, Gay Rights in India, E.P.W., February 3, 1996, at 257.

^[15] Sonal Rangnerkar and Kabir Duggal, Decriminalisation of Homosexuality in India, 3 Law Rev GLC 145, 146 (2004)

^[16] Naz Foundation v. Government of NCT of Delhi & Ors 2009 (111) DRJ 1 (DB)

^[17] Ibid

^[18] Ibid

^[19] Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1

^[20] Nayantara Ravichandran, Legal Recognition of Same-Sex Relationships in India 5 JILS 95, 97 (2013-14)

^[21] National Legal Services Authority v. Union of India (2014) 5 SCC 438

^[22] Justice K.S. Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1

^[23] Navtej Singh Johar v. Union of India (2018) 1 SCC 791

^[24] Justice K.S. Puttaswamy (Retd) v. Union of India (2018) 1 SCC 791

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