“A STUDY ON SECTION 377 OF INDIAN PENAL CODE 1860: ISSUES
AND CHALLENGES”
CHAPTER 1: INTRODUCTON
Section 377 of the IPC (Indian Penal Code), 1860 has been evolved from the characteristics of
the primitive law which was brought into effect by the British during 1860. Majorly all emphasis
has been placed on criminalizing certain sexual acts to be called as "unnatural offences". To be
more appropriate, it implies that two consenting adults (both homosexual and heterosexual
adults) are involved into sexual activities with due regard to their privacy.
This issue has been the most burning and the highlighted topic , after a PIL was brought by
Naz Foundation i against this section in Delhi High Court.
The judgment came into light as the landmark judgment in 2009 which reversed the 150 years
old section. But the judgment was highly criticised and an appeal has been filed against the
decision of the High Court and as a result of which , the Supreme Court , hearing on a curative
petition, put up the judgment of Section 377 ii and sent the matter to a constitutional bench of 5
judges.
As it is evident that the Lord Macaulay drafted the Indian Penal Code and brought into picture in
iii
1861 in British India. Chapter XVI of the IPC enumerates the Section 377 IPC titled "Of
iv
Offences Affecting the Human Body" and further the Section 377 IPC is classified under the
sub-chapter titled "Of Unnatural Offences".
As shown by the legislative history of the subject that the main records of sodomy as a
wrongdoing at Common Law in England were chronicled in the Feta, 1290, and later in the
Britton, 1300. The two writings endorsed that homosexuals ought to be singed alive. Acts of
sodomy later moved toward becoming punished by hanging under the Buggery Act of 1533
which was re-enacted in 1563 by Queen Elizabeth I, after which it turned into the charter for the
ensuing criminalization of sodomy in the British Colonies. Eventually, Same-sex activity was
considered to be ethically unsuitable to the British rulers and their general public.
Regarding the imposition of such law was nevertheless a concerned for the local natives. In a
significant number of the regions in Asia, Africa and somewhere else where the laws were forced
and authorized, there was no (or no reasonable) previous culture or convention that required the
discipline of such offenses. They were essentially forced to stamp out the 'vice' and 'viciousness'
among local people groups which the British rulers found, or expected, was insufferable to an
appropriately represented society.
The concept of Section 377 of the IPC was duplicated in countless regions from Zambia to
Malaysia, and from Singapore to Fiji. The hypothesize innate in the arrangement, was that
carnal exercises against the order of nature abused human modesty and integrity and at the same
time, brings a catastrophe effect to the society so that, regardless of whether the 'victim' asserted
that he had assented to it, and was of full age, the demonstration was as yet culpable on the
grounds that more than the person's will or body was in question. The after effect of the
arrangement was that elements of consent, or of the age of the members or of the privacy of the
incident, were irrelevant. Legitimately, fierce sexual criminal offences are compared with the
same sex activities.
1.1 History of section 377 of IPC 1860
It is evident that since the Section 377 is one the most indispensable topics which has always
been a subject of controversy. Having called it an unjust and improper law, pointing the reason
that it abrogates and violates the very fundamental rights of the citizens as enshrined by the
Indian Constitution. It is quintessential to go to the etymology as to how this law is brought into
the picture. This article majorly covers the overall development of this law from the 16th
century Great Britain right up to 2015 private bill.v
Apart from this, this article also attempts to discuss its historical background and early traces,
explain and analyse the existing controversies and finally deal with the precedents and the recent
judgments that have a significant impact in the society.
The Chapter XVI of the Indian Penal Code, Section 377 states:
“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.vi
The Buggery Act of 1533
Around 1838, with the efforts of Thomas Macaulay, this section was drafted, however ,was just
brought into force in 1860 in light of the Sepoy Mutiny (First War of Independence) 1857. This
law in British India was demonstrated on the buggery Act 1533, which was enacted under the
rule of King Henry VIII. As characterised by the law, 'buggery' is an unnatural sexual act against
the will of God and man. Consequently, anal penetration, bestiality and in its most extensive
sense, homosexuality are declared as penalised.
Offence against the person act 1828
The Buggery Act was repealed and replaced by the Offences against the Person Act 1828 in
1928. This Act brought a little relaxation by widening the ambit of the definition of unnatural
sexual acts, and declaring not very grievous prosecution of rapist , but also homosexuals. It can
be rightly said this Act has been a major source of contributed for Section 377 of the Indian
Penal Code.
The Delhi High Court Verdict of 2009
Having seen the fact that the section 377 has been into debate over the years and this issue has
been finally brought before the High Court of Delhi and the Supreme Court. Going to the
background, in the year 2001, a case regarding the legalisation of homosexuality between
consenting adults was brought from the Hon’ble Delhi Hight Court by a non-governmental
organisation as known by Naaz Foundation (India) Trust. The point contended before the court is
that this law should be restricted only to the non-consensual penile non-vaginal sex and penile
non-vaginal sex involving minors and not to the all. However, having no locus standi in the
matter was made the ground by the ground for the dismissal of the case in 2003. Later, an appeal
has been brought before the Honourable Supreme Court which directs the High court to
reconsider the case. As a result of the same, an historical and landmark judgment came into light
in 2009 by Chief Justice Ajit Prakash Shah and Justice S Muralidhar, which decriminalized
consensual sexual acts between adults. Furthermore, this judgment was to be in force until the
Parliament decided to amend Section 377.
Appeals in the Supreme Court
At the appellate level, on 11th December,2012, the High Court decision of 2009 was overturned
by a panel of two Supreme Court judges. The verdict given by the Supreme Court stated that
only Parliament has the prerogative to amend the law and not the High Court.
Shashi Tharoor’s Private Member Bill
Due to the 2014 General Elections, all parties were reluctant to take up the issue. However, a
serious step has been taken by the Member of Parliament from Thiruvananthapuram Mr.Shashi
Tharoor and the former Under Secretary-General of the United Nations which used the social
media as a weapon to raise awareness and subsequently signed petitions regarding the matter,
and finally introduced a private bill. The paramount object of this bill was to allowing adults
have consensual non-vaginal sexual intercourse, thus effectively decriminalizing homosexuality.
But the irony was this bill was forthwith dismissed without having looked into its merits. This is
still debatable and we wonder what will be the status of Scetion 377 in our Indian democratic
society.
1.2 Meaning of Unnatural offences
The Indian Penal Code was a great achievement in the larger colonial project along with
exercises in codification like the Civil Procedure Code and Criminal Procedure Code.Thomas
Babbington Macaulay, the president of the Indian Law Commission in 1835, was charged with
the testing task of drafting the Indian Penal Code also as a unifying effort to consolidate and
rationalise the “splintered systems prevailing in the Indian Subcontinent”.vii S 377’s predecessor
in Macaulay’s first draft of the Penal Code was clause 361, which defined a severe punishment
for touching another for the purpose of unnatural lust.viii Macaulay abhorred the idea of any
debate or discussion on this “heinous crime”, and in the Introductory Report to the proposed
draft Bill (dated 1837) stated that:
Clause 361 and 362 relate to an odious class of offences respecting which it is desirable that as
little as possible should be said […we] are unwilling to insert, either in the text or in the notes,
anything which could give rise to public discussion on this revolting subject; as we are decidedly
of opinion that the injury which would be done to the morals of the community by such
discussion would far more than compensate for any benefits which might be derived from
legislative measures framed with the greatest precision.ix
The lack of any debate or discussion, suggesting the creation of this definition purely out of the
discretion of Macaulay, also explains the sheer vagueness and ineffectiveness of the language of
the proposed anti-sodomy section. Narran notes that the concept of an unnatural touch was too
vague to be an effective penal stature, and the final draft was a substantial improvement on the
initial draft.x S 377 in its final draft is still shrouded with euphemisms. The final outcome to
prevent this “revolting” and injurious activity evolved in the form of the following text:
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 10 years, and shall be liable to fine.
Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to
the offence described in this section.
S 377 is both very similar to sodomy statutes around the world in that it re-in states and
codifies the common law offence of sodomy, and at the same time, it is very different
from a lot of the sodomy statues:
(a) The statute, unlike many other similar laws, does not define a specific offence of
sodomy. As a piece of legislation, S 377 applies a vague offence – without defining
what “carnal intercourse” or “order of nature” are – to the general public at large, the
only criteria being “penetration”. It is a separate issue that the Indian courts over the
decades have interpreted and constantly re-defined “carnal intercourse” read
conjunctively with the “order of nature” – to include other non-procreative sexual acts.
(b) It applies to both heterosexuals and homosexuals. Over the years, the general
offence of sodomy became a specific offence of homosexual sodomy,xi a significant
distinction although never reflected in the Indian law has subsequently been read
through in certain later cases by the Indian courts. 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.
Sex is the terminology that distinguishes men and women. Sex is what that makes a difference
between genders. Sex is what people experience. Sexual desire is what people feel and is often
driven by. A majority of sexual offence relating to marriage reflects this where victim did not
understand it and even went to the extent Of complying everything wanted xii by the offender and
after a considerable period of time the victim discovers that she is totally in a helpless condition.
Sexual offence has been varied over time and place.xiii Thus what is a sexual offence in one
xiv
country may not be in another. An existing offence may be de-criminalized at the stroke of a
statute. An existing behavior may be recognized as needling to be criminalized. It sometimes
depends upon the morality of a given society. The present chapter tries to locate the legal policy
as to what constitute unnatural offence, the legal interpretation of the offences, the sentence
actually awarded by the court, the emergence of alternative sexuality and Its decriminalization
around the world, the technicalities of the present law Which is open to the question, the
emergence of a ignorable social entity though insignificant in terms of the heterosexuality code
enforced by the dominant section of the society.
1.3 Unnatural offence defined
The Chapter XVI of the Indian Penal Code 1860 have dealt with the term “unnatural offence”
which covers the offences affecting human body. The word 'unnatural' means contrary to nature;
abnormal; not spontaneous. xvThe word 'carnal' implies something relating to physical, especially
sexual needs, and activities.xviWhen construed in this way unnatural offence means sexual
activities contrary to nature. Indian Penal Code 1860 defines it as 'carnal intercourse against the
order of nature with any man, woman or animal.xvii Section 377 of the Indian penal Code 1860
makes it an offence by declaring that “whoever 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." The section further makes it clear that penetration would be sufficient to
constitute the carnal intercourse necessary to the offence described if the section.xviii
The word 'against the order of nature' as used by the definition vividly implies its interpretation
to be done by the judiciary. The definition is incomplete in this sense that what is natural for a
particular society, culture or commonly may be quite unnatural for another. 'Against the order of
the nature' assumes that what is unnatural is to be decided by the majority. It therefore surely
imports the element majority code and has the potency of any neglecting minority practices.
Unnatural Offence then indicates sexual perversion which takes shape in manifold forms xixgoing
by different names such as sodomxx buglerxxi bestiality,xxii tribalism,xxiii sadism,xxivmasochism.xxv
The term unnatural offence implies sexual perversity.xxvi Therefore sexual intercourse per nose
with a bullock is an unnatural offence with the meaning of section 377.xxvii
Several political leaders have also supported for decriminalizing homosexuality such as
Congress leaders Rahul Gandhi, P Chidambaram, Shashi Tharoor, Trinamool Congress leader
Derek O' Brien, CPI (M) leader Brinda Karat, Aam Aadmi Party.
1.4 Decriminalizing homosexuality
Having been criminally penalised by the Code of Criminal procedure, 1973 in India, this law has
victimised the people indulged into consensual homosexual acts. Moreover, as a result of this
law, people involved are subject to harassment and torturous act by the police who adds an
element of fear to prosecute them in this case. This predicament has made many people to suffer
a lot. Not only this, several NGOs working for their right have also been targeted and prosecuted
under Section 377.As a result of the agitation against Section 377, there can be seen an expansive
scope of base for non-discrimination towards sexual minorities and ultimately, brought together
lesbian, gay, bisexual and transgender (LGBT) sexuality and all formerly marginalized
associations , with groups working in areas of children's rights and feminist sections.There is
equally a need to bring more legal and social adaptions for LGBT people in India to get
recognised and get treated at par with other citizens of the country.
i
Naz Foundation v .Govt. of NCT of Delhi,160 Delhi law times 277
ii
Section 377 Indian Penal Code 1860
iii
Ibid
iv
Ibid
v
.bill submitted by Dr shashi tharoor
vi
Indian Penal Code,1860,bare act
vii
The different prevailing systems were in the Bombay, Madras and Bengal Presidencies.
CL 361: “Whoever intending to gratify unnatural lust, touches for that purpose any person or any animal or is by
viii
his own consent touched by any person for the purpose of gratifying unnatural lust, shall be punished with
imprisonment of either description for a term which may extend to 14 years, and must not be less than two years”
ix
Report of the Indian Law Commission on the Penal Code, October 14, 1837, pp 3990-91.
x
Arvind Narrain, Queer: Despised Sexuality, Law and Social Change, Books for Change, 2004, p 49.
xi
S 13 of the Sexual Offences Act, 1956 of England for example read as follows “It is an offence for a man to
commit an act of gross indecency with another man”
xii
Not demanded by offender who deceives her.
xiii
Homosexual activities were treated as offences in England till 1966. But after the passing of Sexual Offences Act
1967 a homosexual act in private between two consenting male who have attained the age of 21 have been legalized.
xiv
Homosexual activity is an offence in India, but it is now not an offence in England.
xv
See Oxford Concise English Dictionary, 10 th Edition; Oxford University Press, Third Impression 2000, at p.
1570
xvi
Ibid
xvii
See section 377 of the Indian Penal Code, 1860.
xviii
Explanation to section 377 of the Indian Penal Code, 1860.
xix
Brother John Antony, petitioner v The State, Respondent,. 1992 CrLJ 1352.
xx
Non coital carnal compilation with a member of the same or opposite sex, eg. per anus or per mouth.
xxi
Intercourse per anus by a man with a man or woman or intercourse per anus or per vagina by a man or a
woman with an animal.
xxii
Sexual intercourse by a human being with a lower animal.
xxiii
Friction of the external genital by one woman on another by mutual bodily contact for the gratification of the
sexual desire.
xxiv
A form of sexual perversion in which the infliction of pain and torture act as sexual stimulants.
xxv
Opposite of sadism, and sexual gratification is Sought from the desire to be beaten, tormented or humiliated by
one's sexual partner.
xxvi
AIR 1983 SC 323
xxvii
AIR 1934 Lahore 261: 1934 (35) Cr. L.J . 1096.
