Explain the legal effect of Section 375 IPC after its latest amendment on Section 377 IPC with reference to the decision of the apex court in the case of Suresh Kumar v. Naz Foundation, 2014

Question: Explain the legal effect of Section 375 IPC after its latest amendment on Section 377 IPC with reference to the decision of the apex court in the case of Suresh Kumar v. Naz Foundation, 2014. [U.P.H.J.S. 2014, UPCJ 2013]

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Answer

Section 377 of IPC defines unnatural offences as:

“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.”

Unnatural offences cover all forms of penetration other than penile-vaginal and consent is immaterial in case of unnatural offences. Voluntary ‘carnal intercourse against the order of nature with a man, woman or animal evinced by ‘penetration’ is essential to attract section 377.

In Naz Foundation v. Government of NCT of Delhi [(2010) Cri LJ 94 (Delhi)], the constitutional validity of section 377 was challenged in the Delhi High Court by Naz Foundation, an NGO. Naz contended that section 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. Naz, therefore, urged the High Court to, through judicial interpretation of section 377, decriminalize ‘unnatural’ sexual intercourse between two consenting adults in private, and to limit it only to non-consensual penile non-vaginal sexual intercourse and penile non-vaginal sex involving minors.

The Delhi High Court accepted all the contentions of the petitioner. It declared section 377 partly ultra vires to the Constitution. It ruled that s 377, insofar it criminalizes consensual sexual acts of adults, (i.e. persons of or above 18 years) in private, is, being violative of arts 21, 14 and 15 of the Constitution, unconstitutional. Nevertheless, it, as stressed by the petitioner NGO, ruled that the provisions of section 377 will still continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

However, in Suresh Kumar Koushal v. NAZ Foundation [AIR 2014 SC 563] the Supreme Court, after hearing equally forceful arguments for and against the retention of section 377 in the IPC, has overruled the Naz Foundation Dictum of the Delhi High Court and thereby upheld the constitutional validity of section 377 of the IPC. It ruled that section 377, IPC, does not offend either of the provisions of arts 14, 15 and 21 of the Constitution. It does not suffer from the vice of unconstitutionality.

Further, it was held that Section 377 IPC applied irrespective of age and consent and that it did not criminalize a particular person or identity or orientation. Section 377 only identified certain acts which, when committed, would constitute an offence. The Bench further observed that such a prohibition regulated sexual conduct regardless of gender identity and orientation.

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