Legalization of unnatural offences has been a burning issue among India since 2009 when the Naz Foundation case held that was unconstitutional and recognized the rights of homosexual people, but soon it was appealed before the Supreme Court stating that it was against the natural order and also hurt the moral and religious sentiments of our communities. Section 377 of the IPC states about penalizing unnatural offences as “whoever voluntarily has carnal intercourse against the order of nature with any man, woman, animal shall be punished with life imprisonment or with imprisonment for a term which may extend to 10 years, and shall be liable to fine.”
According to this provision given under this Section penetration is considered as sufficient to carnal intercourse and the section indirectly mentions about other kinds of unnatural offences such as sodomy, bestiality, rape of minors etc. And if we read deeper into the definition then consent is immaterial in the case of unnatural offences and party consenting for such forms of sexual intercourse is equally considered to be liable as an abettor.
Thus, this section is silent on many factors which makes this section vague and ambiguous as there is no definite way of categorizing something as “against the nature of law”. What is considered as natural or unnatural is highly subjective and depends from society to society as per their personal interpretations. Thus, it is debatable topic and has led to multiple misperceptions about consensual gay sex or even the LGBTQ community by referring them as against the nature.
The history of Section 377 of IPC roots from the Buggery Act of 1533 of British Law, and since Section 377 was added to the IPC it was not subject to much amendments until now. The law was based on Judeo-Christian moral and ethical standards where it was believed that sex is purely for the purpose of functional terms and for procreating human beings and as per this norm, the concept of homosexuality was condemned and called upon as “unnatural” and against the order of natural sexual relations.
Thus, for having a better understanding of what is natural and unnatural we need to know, that what all can be considered as against the order of nature and is it even possible for humans to distinguish objectively between natural and unnatural sexual acts, and whether homosexuality can be declared against the order of nature.
Concept of “Against the Order of Nature“ (Unnatural Offence)
Section 377 explicitly uses the term “against the order of nature”, so before understanding what is against the order of nature, we should know the meaning of “order of nature”. It means that all those events which are normal and take place or expected to take place naturally without any artificial or human intervention to the event. And as per this meaning, unnatural can be regarded as something which is an act or conduct contradictory to the normal functioning of that event.
Now, if take Section 377 into our view, only peno-vaginal sexual intercourse is considered as natural which is needed for procreation of human beings, and all other forms of carnal intercourse go into the category of unnatural sexual intercourse such as anal or oral sex. The primary logic behind considering peno-vaginal sex as natural is that it leads to the creation of new life and goes as per the order of nature, but this doesn’t mean that all other forms of sexual intercourse shall go into the category of unnatural or against the order of nature, because their intercourse doesn’t result in child.
If this concept is taken into consideration, then even contraception and abortion should be outlawed on the argument that they are against the order of nature, if taken it to the general idea of order of nature, the entire basis of medical science is intervening with the natural occurrence of events and all the medical advancements are done by practicing and changing the natural path or intervening with the natural events. But this doesn’t mean that we should stop our research and intervention, as it helps people live longer, have better lifestyle, get better treatments.
Hence, it can be said that discussion of natural v. unnatural is long lasting debate with no certain conclusion as no one can decide what is natural and what is unnatural as everything has human intervention on some or the other level. Similarly, monogamy is a choice and so is sexual preferences. So, just because a person is married, it won’t ensure that he is monogamous in nature. The same idea was acknowledged by Judiciary also while decriminalizing “Adultery”, wherein it continues to be ground of divorce but will not constitute as a crime.
Same is the case with Section 377, that even though it was considered as a crime, it didn’t really stop people from having consensual sex as people did have it, but secretly which further led to numerous health hazards at one drag. It should be noted that law cannot stop people from making their preferences and choices, unless they are in violation of other people’s rights or disturbs them in certain manner while exercising their freedom for which practical restrictions can be imposed.
Thus, section 377 is ancient remnant of our society and with the recent judgment of Navtej Singh Johar v. Union of India, the 5 Judge bench of Apex Court decriminalized consensual homosexual activity among adults and with this judgment it also restored the Delhi High Court’s judgment of Naz Foundation passed in 2009 which was overruled by divisional bench of Supreme Court in Suresh Kaushal v. Naz Foundation case (2013).
Constitutional Validity of Section 377
As stated above, the constitutional validity of Section 377 was challenged in the Delhi High Court in the famous case of Naz Foundation v. Government of Delhi, wherein the primary argument was that Section 377 on account of 2 adults having consensual sexual intercourse is a private matter between those 2 adults and thus it violates their fundamental rights guaranteed under Article 14, 15, 19, and 21 of the Indian Constitution. It was further mentioned that the only reason wherein Article 21 can be curtailed is if it goes against the interest of State, and that part was clearly missing in this case.
The petitioners were of the opinion that legislative intent behind this Section is outdated and based on orthodox views and there is no logical backing to this Section. It was further contended that the expression “sex” used in the Article 15 of the Constitution incorporates the concept of “sexual orientation” and thus no discrimination can be done on the basis of a person’s sexual preferences or orientation as it will amount to violation of Article 15. Summarily, the petitioners prayed that Section 377of IPC should be declared as ultra vires to the Constitution as it criminalizes all forms of carnal intercourse disregarding the consensual carnal acts also.
The Union of India had filed a counter affidavit in the case stating and justifying the purpose of retention of Section 377 on the grounds of public disapproval, immoral acts, social disgust, public health etc. But the Ministry of Health & Family Welfare was in support of the petitioners clarifying that presence of Section 377 in the legislation has hindered the HIV/AIDS prevention efforts and if the Section was struck down, more homosexual people could be helped who were suffering from HIV/AIDS.
After hearing both sides of the case, the High Court gave its judgment in favor of petitioners and declared that specific part of Section 377 as ultra vires which criminalized consensual sexual acts among same sex adults in private, although other parts of Section 377 would still be applicable for other forms of unnatural offences such as bestiality, rape of minors, or non-consensual penile non-vaginal sex involving minors.
This judgment was later challenged in the Supreme Court in the case of Suresh Kumar Kaushal and Anr. v. Naz Foundation and Ors., by group of religious bodies and individuals such as the Apostolic Churches Alliance, All India Muslim Personal Law Board and the Utkal Christian Council. The chief argument of petitioners was that Section 377 was originally enacted by the legislature for protecting and safeguarding the values and morals of various religious cultures.
The Supreme Court divisional bench accepted this contention and set aside the order of Delhi High Court which decriminalized consensual adult gay sex and upheld the validity of Section 377 to be as constitutional. However, the court left it open to the Legislature for deleting and amending the Section as per the needs of the society.
Finally, after the judgment of Justice KS Puttaswamy (Retd) v. Union of India, 2017 was passed the “right to privacy” was declared as part of fundamental right within the purview of Article 21 of the Indian Constitution. This gave a ray of hope to the LGBTQ community and the case of Navtej Singh Johar v. Union of India was filed before the Apex Court. The Court emphasizes on certain principles like “gender identity” and “sexual orientation” taking its inspiration from the judgment of National Legal Services Authority v. Union of India (2014) wherein sexual intercourse and sexual orientation of a person was considered as private activity and thus it definitely comes under the purview of “Right to Privacy”.
Finally, the case threw light on the issues faced by the third gender and declared that they are no more seen as criminals in the eyes of law. They are very much rightful citizens of India and should rightfully be provided with their rights, as they have deserved it from the very initial times, but the law has failed to provide them with equal status and dignity as opposed to the other genders. Therefore, the Supreme Court decriminalized consensual gay sex among 2 adults, and they should have attained the age of majority and capable of making sound and sensible decisions on their own for themselves. But the section still prevails and punishes other kinds of unnatural offences such as bestiality, rape of minors etc.
Question of Consent Under Sec 377
The question of consent goes completely unaddressed under Section 377, as there is no mention of consent in determination of offence. Although in some cases, consent might help in working as justifying factor.
In the case of Fazal Rab Choudhary v. State of Bihar, where 2 men were engaged in consensual gay relation and the lower courts had sentenced the accused person for rigorous imprisonment of 3 years. The accused further filed for a SLP under Article 136 of the Indian Constitution before the Apex Court demanding for reduction in his sentence as there was no forceful sexual intercourse and it was completely consensual.
The Court while giving their judgment measuring the immorality of the act for determining the quantum of sentence and whether it can be reduced, considering “consent” quotient while committing the sexual act. But apart from this, consent didn’t have any role to play under Section 377 until the case of Navtej Singh Johar v. Union of India where consensual same sex sexual intercourse was permitted by the Apex Court.
Thus, it can be settled that certain unnatural offences such as same sex consensual intercourse cannot be delegated as “against the order of nature” because there is no one single objective manner of determining the natural order. Infact everyone has their own preferences and choices and law shouldn’t interfere with personal choices until and unless it is detrimental to other person’s rights or causes disturbance to them.
Hence, Section 377 is constitutionally valid with regard to other forms of unnatural offences such as bestiality, non-penile sexual intercourse with minors, but the category of same sex consensual carnal intercourse is removed from the category of penalized unnatural offences.
This article is authored by Rhea Banerjee, pursuing BA.LLB from Indore Institute of Law.
Refer- shorturl.at/eivGX ,