UNNATURAL OFFENCES

INTRODUCTION

Section 377 states that ‘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’.

It punishes unnatural offences like sodomy, bestiality (sexual intercourse with an

animal), and buggery. Consent is immaterial under this section. In the case
of SURESH KUMAR KOUSHAL V. NAZ FOUNDATION 2014, it was held by the Section
377 IPC is constitutional and made anal sex a punishable offence. However, in
the case of NAVTEJ SINGH JOHAR & Ors. V. UNION OF INDIA a five-judge bench
of the Supreme Court headed by Chief Justice Dipak Mishra partly struck down
Section 377 holding it violative of the fundamental right to privacy. The Court also
said that Section 377 would continue to be in force in cases of unnatural sex with
animals and children. The Supreme Court held that Section 377 was a weapon to
harass members of the community resulting in discrimination against the law.

Unnatural offences are covered in IPC under section 337. Section 377 of the IPC
states that “ whoever voluntarily has carnal intercourse against the order of nature
with any man , woman or animal, shall be punished with the imprisonment for the
life , or with imprisonment of either description for a term which may extend to
ten years , and shall be liable to fine.”

 The title of offence uses the word unnatural offence.

 The word ‘unnatural’ means contrary to nature, abnormal but not a spontaneous
 ‘Voluntarily’ requires that unnatural offence must be accompanied by intention.
 As the word ‘Carnal’ implies something relating to the physical, especially the
sexual needs, and the activities.
 When we wholly try to understand the title it simply defined that Unnatural
Offence means sexual activities which is contrary to the nature.
 The definition further uses the word “against the order of nature” without any
elaboration and leaves it for the judiciary to interpret.
 The term unnatural offence is considered sexual perversity.
 As these section correspond to the to the offence of sodomy and bestiality
under the English Law.
 The consent is totally immaterial in the case of unnatural offences and the party
consenting would be equally liable as an abettor.
 This section is very vague as what is against the order of nature is not
possible to define objectively.
 What is natural and what is not a subject of debate and has led to much
confusion.
 As per this section homosexuality is constructed as an unnatural offence as it
considered being against the order of nature.
 Hence its leads to the question regarding the constitutional validity of these
section.
 Thus in order to determine the constitutional validity of these section and the
reasons for its incorporation in the IPC it is important to look at its historical
basis.

History of the Legislation

 The Indian Penal Code was drafted by the Lord Macaulay and was introduced
in 1861 during the British time.
 As it deeply influenced by the British Law.
 It was also considered that what was the crime in Britain at that time was also
been made crime under the IPC to the larger extent.
 Act of sodomy was chastise by hanging 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 .
 Section 377 has been procuring its origin from the Buggery Act 1533.
 It also emphasis that law has not been amended by the parliament ever since its
enactment.
 As it was considered that the law is based on the Judeo –Christian moral and
the ethical standard which conceive of sex on purely function terms, that is for the
procreation and on the basis of the homosexuality is considered as a unnatural sex
and against the law of order.
 For these purpose of implementation it became very essential that section 377
to determine what is natural and unnatural .As it also becomes necessary to
determine whether homosexuality is against the order of nature or not .

Essential elements

I. A person accused of these offence had a carnal intercourse with man,

woman , or an animal
II. II. Such intercourse was against the order of the nature and,
 III. Such act by the person accused of the offence was done voluntarily .

Types of Natural and Unnatural Sex Offence

Unnatural Sex Offence

I. TRIBADISM / LESBIANISM: Female homosexuality

II. BESTIALITY: Sexual intercourse with the lower animals
III. SODOMY / BUGGARY: Anal intercourse with a male or female. Only proof is
semen in anus.

Natural Sex Offence

I. INCEST: Coitus with blood relatives. It is not punishable in India.

II. RAPE

 When the victim is less than 16 years of age, the sexual intercourse in any
case amount to be rape.
 The consent or non consent doesn’t arise as a woman of only 16 yrs and
above can give a consent of sexual intercourse and this has been described by
the as Statutory rape .
 The slightest penetration of penis within the Vulva with or without the emission
of semen or rupture of hymen is required.
 Rape can be committed even when there is inability to produce the erection of
penis.
 Rape on virgin cause tear at postero – lateral aspect of hymen.
 In India, there is no age limit under which a boy is considered physically
incapable of committing a rape.
 Medical proof of intercourse is not a legal proof of rape.
 Rape is a cognizable offence
 Under the law, rape can only be committed by man and woman cannot rape a
man.
 Except in France where even a female can be charged of rape.
 In India, a woman can be charged to have a woman can be charged to have
committed ‘INDECENT ASSAULT’ on a man.
Can A Husband Be Punished For Having ‘Unnatural Sex’ With
His Wife:

1. Since a Marital Rape is not considered to be a crime in India.

2. As the which arised that can a husband made a punishable for unnatural sex
with his wife in front of court in Rewari, Haryana.
3. The farcical legal situation in India where a martial rape does not amount to be
a rape.
4. And it does not termed to be a crime.
5. But unnatural sex between the homosexual is a crime.
6. In Indian Express Reported , that judge in Rewari has sought advice from Punjab
and Haryana High Court about the cases in which woman is accused her husband
of forcing her to have a anal sex , and she filed a complaint after ten years of
marriage .
7. As the blackwash of the Delhi Gang Rape in 2012 the definition of rape under
the IPC has been extended to include not just peno – vaginal intercourse, but other
form of sexual violence Including forced to oral sex and anal sex.
8. But section 375 does not apply to the married couple.
9. While a human activists have pushed hard for marital rape to be criminalized in
India.
10. As they have to carry on a long battle for section 377 to be abrogate.
11. The Judge in Rewari is considered that S. 377 could be misused by a woman
who had a consensual anal sex with her husband during their marriage.
12. But was trying to falsely implicate him after they had a falling out.
13. The offence under the S.377 is punishable with a imprisonment for life, there
will be no limitation.
14. The husband will have to face a trail for none of his fault the Judge said.
15. As there was also misuse of section 377 is possible by women.
16. Judge writes that if husband is a exempt under S.375, making the same act
punishable under the S. 377 “by no stretch of imagination” be said to be a
logical.
17. Hence in short it was considered that if husband commit any unnatural sexual
activities with his own wife then he can made a liable for such act.
18. Now let’s try to know that can a wife file a case against her husband.
19. Yes, as it also emphasis that under the section 377 a wife can file a case
against her husband for unnatural sexual offence.
20. In the other word of SC the section 377 IPC does not criminalize a particular
people or identity or orientation.
21. It merely identifies certain act which is committed would constitute an offence.
22. Such prohibition regulates sexual conduct regardless of gender identity and
orientation.
23. Thus section 377 covers homosexual and heterosexual alike and the carnal
intercourse against the order of nature among the heterosexual would be punished
in the same manner.
24. Further even if victim consented to the act also the offender can be punished
under these sections.
25. The consent is wholly immaterial for the application of section 377 and an
unlawful act cannot be legitimized by the consent of the victim.

Punishment

 Imprisonment for life.

 Or ten years an in addition to fine.
 This is Non – Bailable
 As the cognizable offence and triable by Magistrate First Class
 This offence is not compoundable
 If an offence is cognizable police has the authority to arrest the accused
without a warrant and to start an investigation with or without the permission
of a court.
 Otherwise Police does not have the authority to arrest the accused without
the warrant and an investigation cannot be initiated without the court order.
 If an offence is bailable the police have the authority to release the accused
on a bail on getting the defined surety amount along with a duly filled bail
bond at the concerned police station.
 Otherwise the arrested person has to apply for the bail before the Magistrate
or Court.
 If an offence is compoundable, a compromise can be done between the
accused and the victim and the trail can be avoided.
 Otherwise no compromise is allowed between the accused and the victim.
 Except under the certain situation where the High Court or the Supreme
Court have the authority for quashing matter.

Cases

 Naz Foundation v. Government of NCT of Delhi and Others

On July 2009, the High Court of Delhi ended over a century of discriminatory
treatment against people because of their sexual orientation by declaring the
application of significant elements of Section 377 of the Indian Penal Code (IPC)
unconstitutional. Section 377 is a relic of the British legal system and in effect it
criminalized same-sex conduct. This case note sets out the facts of the case,
examines the judicial reasoning behind the judgment and comments on some of the
implications of the decision.

 Facts

Naz Foundation v. Government of NCT of Delhi and Others WP(C) No.7455/2001

concerned a writ petition (a public interest action taken before the court) brought
by the Naz foundation, an NGO working with HIV/AIDS sufferers, which argued
that Section 377 of the Indian Penal Code was unconstitutional. Section 377
entitled “Of Unnatural Offences” has been on the statute books since 1861 and
has effectively been interpreted as criminalizing consensual sexual acts between
persons of the same sex.

Section 377 states:

“Whoever voluntarily has a carnal intercourse against the order of nature with any
man, woman or animal shall be punished with a imprisonment for a life or with a
imprisonment of either description for term which may be increased to ten years
and shall also be made liable to fine.” The Naz Foundation submitted that section
377 violated the fundamental rights guaranteed under the Article 14, 15, 19 and 21
of the constitution of India .It brought the action in the public interest on the
ground that its work on combating the spread of HIV –AIDS was been impede by
discrimination experienced by the gay community as a result of section 377. This
discrimination petitioners submitted resulted in the denial of the fundamental human
rights , abuse, harassment and assault by the public authorities thus driving the
gay community underground and subjecting them to a greater vulnerability in
violation of their fundamental rights .

Legal Arguments submitted

The Naz foundation

 The Naz foundation submitted that the harassment and the discrimination of the
gay and the
Transgender community in India resulting from the continued existence of section
377 affected the rights of that community.
 Which were guaranteed under the constitution, including the rights to non –
discrimination, right to privacy, the right to life and liberty, and the right to health.
 They argued that the constitution protects the right to privacy under the right to
life and liberty and the right to health.
 As they argued that the constitution protects the right to privacy under the right
to life and the liberty enshrined in Article 21.
 Furthermore, they submitted that the right to non- discrimination on the ground
of sex in article 15 should not be read restrictively but should include the sexual
orientation.
 They also profess that the criminalization of homosexual activity by the section
377 discriminated on the ground of the sexual orientation and was there contrary
to the constitutional guarantee of non discrimination under the article15.
 Finally the Naz foundation stressed that court in other jurisdiction have stuck
down comparable provision relating to the sexual orientation on the ground that
they violated the right to privacy , dignity and equality .
 The Government of India
 Both the Ministry of Home Affairs and the Ministry of Health and the Family
welfare submitted legal opinion in respect to writ petition.
 As the two minister came down on the opposite side of the legal arguments
offering completely
Contradictory affidavits.
 As MHA on one hand argued for the retention of section 377 on several
ground.
 First it is provided for the prosecution of the individual for the sexual abuse of
children.
 Second it is filled a gap in the rape law.
 Third that if removed it would provide for “flood gates of slack behavior”. Hence
MHA submitted that Indian society does not morally disregard such behavior and
law should reflect societal values such as these.
 By variance, the Ministry of Health and Family Welfare (Conjunction with the
National Aids Control Organization) presented evidence in a support of Naz
Foundation submission that the continued actuality of section 377 is counter –
productive to the effort of HIV/ AIDS prevention and treatment.
 As they argued for the expulsion of section 377 stating that it makes a large
number of people in high risk categories in relation to HIV/AIDS antipathetic to
come forward for treatment due to fear of law enforcement agencies, and that in
driving homosexuality undergoes it increases risky behavior such as unprotected sex.
Judgment

 In a decision that has been praise not only as a landmark victory for the
equality and the social
justice but also in term of its tough legal reasoning the High Court of Delhi
concluded that section 377 IPC , to that extent as it criminalize consensual sexual
act of adults in private is violative of Article 21, 14, and 15 of the discrimination .
 A period of time many element of the decision will be far reaching for right of
LGBT in India High Court emphasis on the right to equality Article 14 and 15 of
the constitution is particularly commendable for at least two reasons.
 Firstly the judgment must be estimable for its completeness .In undertaking a
comprehensive and detailed analysis of the law of India in respect to discrimination
on the ground of sexual orientation , the High court has left little margin for the
decision to be overturned on the basis of misinterpretation or misapplication of law
.
 Second the High Court reference to and application of the highest international
standard on equality to the Indian context set a positive example which should be
inspire the judicial decision making countries which presently criminalize same sex
conduct .
 The High Court began its Article 14 analysis by setting out that any distinction
must be based on intelligible differentia which has a rational relation to the
objective sought and must not be unfair or unjust . S.377, the Court said, does
not distinguish between public and private acts, or between consensual and non-
consensual acts, therefore does not take into account applicable factors such as
age, consent and the nature of the act or absence of harm. Thus, such
criminalisation in the absence of evidence of harm seemed arbitrary and
unreasonable.
 In considering the legal principles urge by Article 14 of the Constitution, the
Court took into account the Equal Rights Trust’s Declaration of Principles on
Equality as “the current international understanding of Principles on Equality”. Citing
in full Principles 1 (right to equality), 2 (equal treatment) and 5 (definition of
discrimination) of the Declaration, together with landmark jurisprudence from the
Canadian, South African and United States courts, the High Court emphasized that
there was a need to include sexual orientation among protected grounds of
discrimination and build indirect discrimination and harassment into any consideration
of the right to equality.
 Thus, dealing with the argument that Section 377 was neutral, as submitted by
the MHA, the High Court stated that although the provision on its face was neutral
and targeted acts rather than persons, in its operation it unfairly targeted a
particular community, having the result that all gay men were considered criminal
and it therefore violated Article 14 of the Constitution.
 Moving on to consider whether the reference to “sex” in Article 15 of the
Constitution should be interpreted as including sexual orientation on the basis that
discrimination on the grounds of the latter is based on stereotypes of conduct on
the basis of sex – as was argued by the Naz Foundation, the High referred to
the Human Rights committee decision in;

Toonen v. Australia

Facts

In which it was held that the criminalization of sexual act between men was
considered a violation of Article of the International Covenant on Civil and Political
Rights where a reference to sex was taken as including sexual orientation .On the
basis of perusal of Indian and international human rights jurisprudence the High
Court declared that S. 377 was also unconstitutional on the basis of Art 15.
 As it was explained that sexual orientation is a ground of similar to sex and
that discrimination on the basis of sexual orientation is not permitted by Article 15
.Further Article 15(2) include the notion of horizontal application of rights.
 In other words it even prohibits discrimination of one citizen by another matter
of entry public place As by taking a view discrimination on the ground of sexual
orientation is unbearable even on the horizontal application of the right incorporate
under the Article 15.
 The outlines of its judgment the High Court stressed the importance of endorse
the value of equality, tolerance and inclusiveness in Indian Society.

Suresh Kumar Kaushal v. Naz Foundation

Facts

 As these case was deal with constitutionality of S. 377 of IPC which was act
out in 1860.
 As in this case petitioner Suresh Kumar Kaushal files a case against the Naz
foundation in 10 July 2009.
 In their appeal in a Supreme Court the petitioners argued that section 377 does
not categories any particular group or gender.
 Hence they said that it does not violate the rights of Article 14, 15, and 21 of
the constitution.
 They also proclaim that if the High Court judgment was approved by in the
Supreme Court “Indian social structure and the institution of marriage will be
destructive affected and it would cause young people persuade
towards the homosexual activities.

 At last they finally conform that the Supreme Court could not be legislate and it
should left the matter of legality or illegality of section 377 to the parliament.
 As a result Supreme Court accepted the clash which was advanced by the
appellants and observed that section 377 is the only law that criminalizes
pedophilia and crime like sexual abuse and assault
 It was also reasoned that if S. 377 was a pre –constitutional statue and if it
were in violation of any fundamental right, and the composer of the constitution
would not included it in the first place.
 As based on such declarations the apex court overturned the decision of Delhi
High Court.
 By the decision of Supreme court it impact was met with heavy criticism and
general dissent from the intelligentsia.
 As it was welcome by many religious groups.
 Also there are some religious organization who are favoring decriminalization of
homosexuality.

Noris v. Republice of Ireland

Facts

 The gay man brings a case before a court from the fear of being arrest as the
petitioner Noris explained that he is agonize from a great depression and lonliness
.when he has experienced that he is homosexual and his feeling of sexuality would
make him criminality .As court accepted and it was held that there must be a
decriminalization of a sodomy law.
 The leader of Congress Party Shashi Tharoor has introduced a private member’s
bills twice in Lok Sabha to support in favour for decriminalization of homosexuality
 But the result does not come in the favour of him.
 It became unsuccessful in getting it passed in Lok Sabha.
 As so many leaders are come to support the decriminalisation of homosexuality.
 One of them is our current Finance Minister Arun Jaitely who was also favour in
the support of decriminalisation.
 In today also there was so many petition was filed against the Naz Foundation.
 And the hearing was going on such case.
 Yet the decision on homosexuality neither the Supreme Court declares neither
clearly it legal nor the illegal.
 As it taking a long time for renouncing decision by saying that parliament has to
discuss whether the section 377 should be abolished or not.
 As it also emphasis whether it should be violated the right of homosexuality
orientation or not.

Conclusion

Violation of fundamental rights of homosexuality minorities are happened .As IPC

has been introduced in India during the British time in 1860 that the if the same
–sex gender commit the intercourse it amount to be an offence. But when they
leave India they made rule for them and declared that the same gender person
has a right to do marriage with the same gender people. As in English law it is
decriminalized. As I also deal with some case from which the prominent case is
Naz foundation in which they are appealing from a court for the abolisition of
section 377. They stated that their fundamental rights are violated which is
guaranteed by the constitution, somewhere their rights are violated. As Indian
society does not accept them as they throw out them from their society. In our
constitution it was not mentioned that for homosexuality the fundamental rights are
not given. But it was clearly stated that there must be equality article 14, there
not be discrimination on the basis of caste, religion, sex and gender which was
mentioned in article 15 and so on articles are giving the guaranteed for the
protection of fundamental rights.

As it is my opinion that in our India there must be made a law for the right of
homosexual people that they can able to marry with a same sex gender like other
heterosexual couples .If such decision is passed by supreme court then the
homosexual minorities get a new hope for their survival . Still there are hearing
are going on the homosexuality subject but yet the final decision