Unnatural offences under IPC
Author : Ashish Nagpal
The year 2018 changed the way we look at gender, sex and sexuality in much of a broader sense. The judgement of the Supreme Court in Navtej Johar vs Union of India holding that the consensual same sex marriage under section 377 of the Indian Penal Code was no longer criminalized and indeed was revolutionary in the manner in which it protected the rights of the LGBT community. Section 377 which is also known as “Unnatural Offences” was introduced in 1861 in India by the Britishers. Section 377 criminalized “carnal intercourse against the order of nature with any man, woman or animal” making it as an unnatural and a punishable offence. With this judgement the Supreme Court has expanded the meaning of ‘sex’ within the constitution to include gender identity and sexual orientation. The meaning of the word ‘carnal’ in this definition means something relating to the physical, especially the sexual needs and the activities. Thus the simple meaning of the definition would be that the unnatural offences means sexual activities which are contrary to the nature. The consent here is totally immaterial in case of unnatural offences and the party consenting would be equally liable as an abettor. This section i.e 377 is quite a vague approach and something that may be against the nature cannot be explained objectively, Hence this section has been questioned quite a lot times in the recent times.
History of the legislation
The Indian Penal Code has been influenced a lot by the English Law and hence it was considered that what was crime in Britain at that time was also a crime in IPC to a larger extent. An act of sodomy was chastise under the Buggery Act of 1533, which was re-enacted in 1563 by the Queen Elizabeth I , after which it became the charter for the subsequent criminalization of the sodomy in the British Colonies. Hence Section 377 has procured it’s roots from the Buggery Act. This Section has not been further re-enacted since it was passed by the legislation.
Essentials of this Section
- A person accused under this section must has done carnal intercourse with man, woman or an animal
- Such intercourse thus done was against the order of nature
- The offence was done voluntarily by the offender
Types of Unnatural Sex Offences
This section is based on the term of “unnatural offences” therefore it is essential to understand the types of unnatural sex offences that are punishable under this law earlier.
- Tribadism/ Lesbanism :- Female Homosexuality is defined under these terms
- Bestiality :- Sexual intercourse with animals
- Sodomy/ Buggary :– Anal Intercourse with a male/female. The proof of this offence is semen in anus.
Punishment of Unnatural Offences
The punishment for Unnatural offences is imprisonment for life or ten years which imposes addition to fine. This is non bailable offence and triable by magistrate first class. This offence is not compoundable. The word compoundable here means that if the offence is compoundable than an compromise can be made between the parties and trial can be avoided but this section i.e 377 is an un-compoundable offence.
Criticism and Support
In the year 2008, Additional Solicitor General PP Malhotra openly talked about homosexuality and to quote his exact words he said, “Homosexuality is a social vice and the state has the power to contain it. If it is allowed than the risk of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade values of society” This clearly shows the mindset of even those who are given the power to decide what is right or what is wrong for the larger public in general.
Further almost all the religious leaders were against homosexuality. To give a few instance, renowned Yog guru Baba Ramdev even stated that he could cure homosexuality with the help of Yoga and called it a big addiction. The Vishwa Hindu Parishad Vice President Om Prakash openly said that homosexuality is against the Hindu culture, nature and against science. Further even The Ministry of Health and Family welfare opposed the withholding of the section 377 stating that it would further hinder anti HIV/AIDS efforts.
On the other hand the United Nations appreciated the de-criminalization of Section 377 stating that criminalizing private consensual same sex conduct clearly violates right to privacy of individuals. Also, majority of Indian actors and social influencers came into the support of the decision of government.
Supreme Court Trans-formation
This transformation begin 2014, wherein April 2014 a bench of justices passed a judgement in the case of National legal Services Authority vs Union of India holding that the transgender people have the constitutional right to self identify their gender as male, female or even as transgender without any medical examination and they have a right of expression of their gender identity. NALSA brought this news with great excitement and gave momentum to the trans rights movements in India. Transgender people have been exploited for decades and they have faced exploitation in all the sectors of life and their status of life has been degraded but this NALSA judgement gave them to fight for their rights and give them a status in the society. This indeed have proved to be a catalyst among the various organizations of the country and indeed paved way to revive the section 377 challenge.
Later in 2016, two fresh petitions were filed under the Article 32 of the constitution. The first petition was by Navtej Johar and others and the second one was by three transgender activists from Karnataka in the Supreme Court, After this a wave of petitions were filed by many LGBT organizations across the country and also this was the first time that their voices are being heard by the Supreme Court on this matter.
Thereafter in 2017 came another big judgement by the Supreme Court in the case of Puttuswamy vs Union of India . In this judgement, the Supreme Court held that there is a inherent right to privacy included in the right to life. The court further hold that the right of privacy specifically includes the right to have intimate relations of one’s own choice and it includes the right to gender identity and sexual orientation too. After this thousands of petitions were again filed in against the Section 377.
Finally in 2018, when the LGBT community and the transgender movement had gained great social acceptance and the community was waiting on the historic decision of de-criminalization of section 377 and their emphatic win, The Supreme Court on 6th September 2018 headed by a 5 judges bench in a 5 judges bench led by the Chief Justice Unanimously held in case of Navtej Johar that the section 377 was unconstitutional to the extent that it criminalizes consensual relationships between two adults and overruled it’s previous judgements in this regard. The Judgement of Navtej Johar is unprecedented and the CJI recognized that this section 377 has indeed consigned a group of individuals and was destructive to their identities. The LGBT community thus will have all the constitutional rights and have protection of all their fundamental rights.
Is Section 377 really decriminalized ?
This question really comes into the mind of all the individuals which have seen the emphatic win of the LGBT community of India that whether they are treated equally in the Indian society or not ? The answer is No. The LGBT community in India is still abruptly discriminated in India society and even with the passing of these landmark judgements they are not treated equally with others. Even cases of violence are very common against them and however the courts of India have changed their minds but in some societies homosexuality is still seen as a mental disorder. These people are mocked because of their orientation and they still fear to come in public at large. After all these hardships they are ultimately forced to become sociopaths.
The Supreme Court’s historic decision is further leading to broader LGBT rights in India and it is not far for a future which welcomes these people with open arms. However there is an urgent need for the people to adopt a modern approach for the people which would ultimately shed all the prejudice and stereotypes against homosexuality. The members of this society are just like normal people and should be at all be treated differently future for India with full equality will be the one in which we recognize that all the genders are equal.