SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY

UNNATURAL OFFENCE: A COMPARATIVE ANALYSIS WITH SPECIAL

REFERENCE TO UK AND USA.

Submitted by

OSHI YADAV

Division – ‘B’ PRN – 21010323086 Class of BA LLB – SEM – 3

SYMBIOSIS LAW SCHOOL, HYDERABAD

In

November 2022

Under the guidance of

Dr. Hifajatali Sayyed

Assistant Professor

Symbiosis Law School, Hyderabad

1
 CONTENTS
Abstract....................................................................................................................................................3
PART 1....................................................................................................................................................4
INTRODUCTION...............................................................................................................................4
Scope of the Study...............................................................................................................................5
Research Questions..............................................................................................................................5
Research Objectives.............................................................................................................................5
Research Methodology........................................................................................................................5
PART 2: ANALYSIS..............................................................................................................................6
What is Section 377.............................................................................................................................6
Evolution of the Law on Unnatural Offences......................................................................................7
The Evolving Stance of the Judiciary on Homosexuality and Unnatural Offences............................8
Contentions on Section 377.................................................................................................................9
Homosexuality on the International Stage.........................................................................................11
Unnatural Offences in UK.............................................................................................................11
Unnatural Offences in USA...........................................................................................................12
PART 3..................................................................................................................................................14
Conclusion.............................................................................................................................................14

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 Abstract

Human rights have always been recognised, safeguarded, and defended by the Indian
democracy. The phrases 'Liberty and Equality' are not only ideals written in our
Constitution's Preamble, but an everyday struggle for its residents. The most effective
instrument used by homophobic organisations to target India's sexual minorities was Section
377 of the IPC, 1860. Although homosexuality is not new in Indian society, homophobia is.
The IPC (IPC) of 1860 defines the term ‘unnatural offences’ as intercourse against the order
of nature with man, woman or animal by saying Section 377 (unnatural offences) in Chapter
XVI that any man who 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 term which may extend to ten years, and shall also be liable to fine. In
India, unnatural offences are punishable under Sections 375 and 377 of the IPC. The scope of
these provisions was considerably expanded by a 2013 amendment, which criminalized all
sexual acts against the order of nature. This article critically examines the law on unnatural
offences in India, with a particular focus on the 2013 amendment. The offense against nature,
or the act that is not natural, has historically been the legal term used by English-speaking
states to define forms of sexual conduct that are considered to be not natural or respectable,
and are a legally punishable offence. For instance, the state of California initially used the
term “the notorious crime against nature” to describe sodomy as well as bestiality. This
language was ultimately dropped, with separate definitions of individual crimes.

PART 1

3
 INTRODUCTION

Sexual acts between two consenting adults are prohibited under the Unnatural Offences
(Prevention) Act, Section 377 of the IPC. People who indulge in consensual homosexual
relations or other sexual practices that society deems to be unnatural are frequently
prosecuted and punished under the law. In 1861, Section 377 was added to the IPC to prohibit
"unnatural crimes" against women. It has been considered to cover any and all
homosexual relationships, whether or not it involves penetration. Violations of human nature,
such as rape, sodomy, and bestiality, are classified as unnatural acts in India. These offenses
are punishable by law, and the punishment may vary depending on the severity of the
offense. Section 377 of the IPC criminalizes homosexual relations, punishing up to 10 years
in jail. The law is a colonial-era law introduced in India in 1860 and criminalizes sexual
activities "against the order of nature." In 2013, the Delhi High Court overturned the law, but
the Supreme Court overturned the decision in 2013. Following petitions contesting the law's
legality, the hon'ble Supreme Court decided to examine it in January 2018. On September 6,
2018, the Supreme Court ruled that consenting to adult gay acts is not against the law and that
Articles 14 and 21 of the Indian Constitution contest the way Section 377 is currently being
interpreted. Except for homosexual interactions, Section 377 of the IPC continues to apply to
intercourse with minors, non-consensual sexual activity, and bestiality. Unnatural sexual
misbehaviour with a female has been categorised as rape, and sexual abuse with a male or
female juvenile is covered by POCSO legislation.

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 Scope of the Study

The present study focuses on the adaptability and extent of Unnatural Offences under Section
377 along with its evolution and applications in the landmark judgements of the same. The
extent of the research is limited to India with special reference to USA and UK.

Research Questions

The study titled ‘Unnatural offence: a comparative analysis with special reference to UK and
USA’ aims at answering the following questions:

1. Is there a relation between the Section 377 and the British law imposed in the Pre-
Independence era on the subject?

2. What is the development of homosexuality laws in USA and UK as compared to

India?

3. What is the current applicability of section 377 in India?

Research Objectives

The study titled ‘Unnatural offence: a comparative analysis with special reference to UK and
USA’ seeks to reflect what exactly its title requires it to, which is to critically analyse the
extent of Section 377. The objectives of the study are mentioned below:

1. To analyse Section 377 with reference to its counterpart in USA and UK.

2. To analyse the evolution of Section 377 and homosexuality in India.

3. To find a relation between the landmark judgements on the subject and the impact of
the Section.

Research Methodology

The study, titled ‘Unnatural offence: a comparative analysis with special reference to UK and
USA’ employs a research methodology called as ‘doctrinal research,’ which refers to a

5
manner of doing research that is commonly referred to as “typical legal research.” This
suggests that books, papers, and journals are the most common types of sources for obtaining
knowledge. The doctrinal kind of research technique is the most appropriate for the current
study since it necessitates significant research on torts and legal principles. Journals and
articles that give information about case laws, statuettes, and concepts connected to doctrines,
their formulation, and application would therefore be necessary for an appropriate
presentation of the topic.

PART 2: ANALYSIS

What is Section 377

In India, unnatural offenses have the exact definition per the IPC Section 377. The provision
in question reads as follows: “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 also be
liable to fine.”1

Essentials of Section 377

1. It must involve "voluntary carnal intercourse."

2. It must be "against the order of nature - with any man, woman, or animal."

3. "Penetration" must be present.

Penetration is sufficient to qualify as a sexual act, according to the explanation given under
this clause. This section refers to the English law crimes of sodomy and bestiality. The
phrasing of this provision makes it clear that permission is entirely irrelevant in cases of
unnatural crimes, and the one giving consent would be just as responsible as an enabler. The
definition of what is contrary to the natural order of things cannot be determined objectively,
hence it being considered quite ambiguous. It's up for argument what constitutes natural and

1
Section 377, Indian Penal Code, 1860

6
what does not, which has caused a lot of controversy. Because homosexuality is against the
natural order, it is considered an unnatural offence under this section.

Evolution of the Law on Unnatural Offences

Section 377 was introduced in 1838 by Thomas Macaulay however it was only put into
action in 1860 due to the First Declaration of Independence in 1857. This statute in British
India was fashioned after the Buggery Act 15332, which was passed during King Henry VIII's
rule. This legislation described ‘buggery’ as an ‘unnatural sexual conduct against God's and
man's will’3. As a result, anal penetration, bestiality, and, in a larger sense, homosexuality
was criminalised.

The Act was abolished in 1828, and the OAPA 4 took its place. This Act widened the scope of
unnatural sexual practices, making it easier to prosecute sexual offenders as well as
homosexuals. This act is regarded as the foundation for Section 377 of the IPC. In time, this
act was replaced by its successor, OAPA5, 1861. This law was established on the basis of
Judeo-Christian intellectual and moral ideas that view sexuality as exclusively for
procreation, and hence homosexuality is regarded unnatural and outside the established
order.

In 2001, The Naz Foundation (India) Trust, filed a suit in the Delhi High Court contesting
Section 377 in order to allow sexual interactions between consenting adults. Section 377,
they said, “should only apply to involuntary penile non-vaginal intercourse and penile non-
vaginal intercourse with minors.” However, the High Court rejected the petition in 2003,
ruling that the Naz Foundation lacked locus standi. The Supreme Court sided in their favour
and ordered the High Court to re-evaluate the case after the Naz Foundation challenged the
High Court's decision to dismiss their appeal.

Naz Foundation v. Government of the National Capital Territory of Delhi (2009) is a historic
Indian case ruled by a two-judge panel of the Delhi High Court, which concluded that
criminalising consenting gay intercourse between adults violates basic rights guaranteed by
2
Buggery Act, 1533
3
Id
4
Offences Against the Person Act, 1828
5
Id

7
India's Constitution. The ruling resulted in the legalisation of gay conduct committed by
consenting adults across India. The Supreme Court of India later overruled this in Suresh
Kumar Koushal vs. Naz Foundation6.

LGBTQ advocates petitioned the Supreme Court, in 2016, “alleging that Section 377 violated
their ‘rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and
equality, as well as the other fundamental rights guaranteed under Part III of the
Constitution.’ The Supreme Court upheld the Right to Privacy as a basic constitutional right
in August 2017. It also stated that "sexual orientation is an important aspect of privacy.” 7 The
hon’ble SC in unanimously noted that, “Section 377 of the Indian Penal Code, 1860, which
criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as
it criminalized consensual sexual conduct between adults of the same sex.”8

The Evolving Stance of the Judiciary on Homosexuality and Unnatural

Offences

The hon’ble SC has held unanimously that Section 377 of the IPC, criminalizing a carnal act
contrary to the natural order, is unconstitutional as long as it criminalizes consensual sexual
acts between adults of the same sex. Broadly, the petitioners had petitioned in the Delhi High
Court to have the said Section 377 of the IPC declared ultra-visa constitutional to the extent
that it made adult consent to sexual activity illegal. Following this, When the father of the 14-
year-old child notified the police, they filed a FIR against the suspect, both under relevant
sections of POCSO Act9 and Section 377 of the IPC, which makes sex with an adult contrary
to order of nature an aggravated crime.

This section has been read by courts to criminalise bestiality, sexual assault on children, and
consensual homosexual intercourse. Since the provision penalizes sex acts that are contrary to
irrespective of an individual's gender expression, these acts could also be punished by Section
377, even when performed by heterosexual couples. The section mentioned above deals with
non-natural offences, and says that anyone who has voluntary sex that is in violation of the

6
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1
7
Ashok Kumar, Unnatural sexual offences, Review of Forensic Medicine and Toxicology 271–271 (2010).
8
Navtej Singh Johar v. Union of India, (2018) 1 SCC 791
9
Prevention of Child Sexual Offences Act, 2012

8
natural order with any man, woman, or animal will be punished with incarceration of any
kind for a length of up to 10 years, as well as a penalty.

The Indian Supreme Court has said that the other aspects of a colonial-era law dealing with
unnatural sexual acts with animals and children will continue in force. The landmark ruling
reversed a 2013 verdict upholding the colonial-era law, known as Section 377, which
classifies homosexual sex as unnatural. The colonial-era law is a colonial-era law dating back
to 157 years, which criminalises some sexual acts as an unnatural offence, which is
punishable with 10 years in prison.

The notion that Section 377 serves as a hub for the development of state authority conflicts
with the claim that it is frequently used as a platform for the legal control of same-sex
relationships. Few incidents of homosexual behaviour are allegedly challenged in higher
courts, according to Section 377 case law. But one thing is certain: Section 377 is being used
as a deterrent targeting sexual minorities. The Indian courts have been attempting to figure
out what exactly constituted "carnal intercourse against the order of nature" since 1860.

Contentions on Section 377

The laws that regulate non-natural sexual offences in India fall under Section 377 of IPC; this
has discriminatory effects because it blatantly infringes on the right of privacy and freedom
of (homosexual persons) as embedded in Article 21. The Supreme Court of India, however,
has stated that an individual who participates in sexual behaviour of any type with animals
would still be guilty of the crime as per the said Section IPC. The read was overturned by the
Supreme Court in Suresh Kumar Koushal judgement 10, which affirmed the constitutional
validity of the section and again criminalised consensual private sexual acts in violation of
natural order. The Supreme Court of India held Section 377 amounts to unjustified restraint
on freedom of expression as private consensual carnal intercourse does not harm the decency
or public morality in any manner.

Section 377 of the IPC is violative of not only Articles 14 and 15, that provide rights to
equality and right against discrimination, but also Articles 21 that provides the citizens with
right to Life and Personal Liberty. Section 377s fails to differentiate between consensual and
non-consensual acts, or offer a separate defence for children against violence, led to

10
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1

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homosexuality being identified with other crimes of violent sexuality--heightening a
stigmatization of law. Section 377 has been only diluted, and sexual acts, regardless of their
nature, between consenting adults are not punishable by the Act today.

According to Section 377, only sexual acts in the penis of the vagina are natural, and all other
forms of sexual acts, like anal or oral, are unnatural. Unnatural offences are defined under
section 377 of the IPC; “anyone who willingly engages in a carnal act contrary to the order of
nature with any man, woman, or animal is guilty of unnatural offences.” 11 The commentary
attached to the above-mentioned section indicates that the IPC is intended to penalize
sodomy, and beastliness; in other words, it is directed at the practice of sexual acts, not at
sexual subjects, who have become manifested socially constituting turpitude, as
homosexuals.

The law on unnatural offences in India is oppressive and discriminatory against the LGBTQ
community. It criminalizes all sexual acts against the order of nature, regardless of consent.
This effectively means that any form of non-heterosexual sex is a criminal offence. The
amendment also fails to take into account the fact that consent is not always a binary concept.
For example, someone may consent to a sexual act but not to the use of certain sexual acts.
This amendment therefore fails to protect the rights of LGBTQ people.

It is also important to note that the law on unnatural offences in India is not evenly applied. In
practice, it is mainly used to target LGBTQIA+ people. This is particularly true of
transgender people, who are often arrested and harassed by the police on the basis of this law.
This highlights the need for reform of the law on unnatural offences in India.

The law on unnatural offences in India is a tool of oppression and discrimination against
LGBTQ people. It criminalizes all sexual acts against the order of nature, regardless of
consent. This effectively means that any form of non-heterosexual sex is a criminal offence.
The amendment also fails to take into account the fact that consent is not always a binary
concept. For example, someone may consent to a sexual act but not to the use of certain
sexual acts. This amendment therefore fails to protect the rights of LGBTQ people.

11
Supra Note 1

10
 Homosexuality on the International Stage

Homosexual behaviour is still punishable by death under sharia law in Islamic countries
like Iran, Sudan, Saudi Arabia, and Yemen. The same is true in sections of Somalia and
northern Nigeria. In two distinct countries, Syria and Iraq, non-state on-screen figures, along
with the Islamic State, carry out death sentences. The majority of the northern hemisphere
permits consensual sexual practices between people of the same sex, according to the most
recent Equaldex data. It is, however, still illegal in huge regions of Asia, African continent,
and the Gulf Region. In some countries, including Senegal, Saudi Arabia, and Afghanistan, it
is a capital offence.

Unnatural Offences in UK

The two major crimes against homosexuals continued to be anal sex, known as a snitch under
the law; and gross indecency, any kind of sexual contact between men, including simple
touching and kissing. There was also a charge of procuring--inviting or aiding homosexual
sexual intercourse. Centuries-old laws against homosexuality continued to remain on the
Statute Book well after the Sexual Offences Act 1967, referred to as the unnatural offences. It
did not cover armed forces or the Merchant Navy, where sexual intercourse between men
remains an offence. The 1533 Buggery Act was the first sodomy law in the country, formerly
such offences were handled by ecclesiastical courts.

It was replaced with Section 15 of the Offences against the Person Act 1828, and Section 63
of the Criminal Law (India) Act 1828, stating that buggery will remain a capital offence.
Buggery continued to be a capital offence in England and Wales until the passing of the
Offences Against the Person Act 1861. The Offences Against the Person Act of 1861 brought
together most laws on bodily offences and acts of violence in one modern, simplified piece of
legislation -- it is still the foundation for much of British physical assault law.

These offences, known at the time they were passed as unnatural offences, were a felony of
buggery, as defined by section 12 of the Sexual Offences Act 1956, and related, related
offences in historic acts, such as the An Act to punish the vice of buggery, 1533, and such
acts. Section 9 Unnatural offences - (1) A person (A) who commits a buggery with another
person (B) - (a) where A has attained the age of 16 years and B is under 16 years, or (b)
elsewhere than in private with another person (B), shall be guilty of an offence; (2) A person
guilty of an offence under subsection (1) shall, on conviction on information, be liable - (a) if

11
with a person under the age of 16 years and so charged in the information, to imprisonment
for life; (b) otherwise, to imprisonment for a term not exceeding 7 years.

The UK Parliament repealed the Buggery Acts for England and Wales in 1967 (insofar as
they related to consensual homosexual acts in private), ten years after the Wolfenden Report.
The Sexual Offences Act 1967 was the first gay-law reform since 1533, when anal
intercourse was made a crime in the reign of Henry VIII; all other male-on-male sexual acts
were banned during Victorian times, in 1885.

Unnatural Offences in USA

Georgia’s Sodomy Act, states that a man is guilty of a crime if he commits a deviant sexual
act with another individual of the same sex, with deviant sexual acts defined as any contact
between any part of the genitals of one man with the mouth or anus of another, or the
penetration of another person’s genitals or anus by the genitals or the anus by an object.
Sodomy has existed in the criminal codes of numerous U.S. states for over 100 years, making
such sexual conduct between partners of the same and different sex. Sometimes these two
terms are understood as synonyms; sometimes sodomy is limited to sexual acts between two
people; and sometimes sodomy is taken to encompass anal intercourse or bestiality, while
crimes against nature include fellatio as well. Generally, courts held that the touching of a
child by an adult, or having sexual intercourse with the victim, by a child was an unnatural,
deviant act, since such action was inconsistent with nature, or normal behaviour or feelings.

In Bowers v. Hardwick12, Justice White framed the issue as “whether the Federal Constitution
confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates
the laws of many states that still make such conduct illegal and have done so for a very long
time”13 The answer to which was no.

In Lawrence v. Texas14 was a landmark case, wherein the United States Supreme Court, by a
6-3 decision, struck down sodomy laws throughout the US, making homosexual sex lawful in
all US states and territories. The U.S. Supreme Court, in the Lawrence v. Texas case,

12
Bowers v. Hardwick 478 U.S. 186 (1986)
13
Id
14
Lawrence v Texas, 539 US 558, 9 (2003)

12
reversed the United States Supreme Court’s ruling in Bowers v. Hardwick15, striking down
Texas sodomy law that prohibited certain sex acts between two persons of the same sex. It
stated that “The petitioners are entitled to respect for their private lives. The state cannot
demean their existence or control their identity by making their private sexual conduct a
crime. Their right to liberty under the Due Process Clause gives them the full right to engage
in their conduct without intervention from the government.”16

Consensual sodomy was decriminalised by the American Law Institute in 1955, and the MPC
did not incorporate those restrictions in its legislative text after that. The United States
Supreme Court ruled in the mid-1900s that there is a right to privacy protected by the ‘Due
Process Clause’ of the Fourteenth Amendment from “interfering with people’s control of
their own bodies, disrupting personal relationships, and intruding into the innermost sanctum
of the home, the bedroom”17

The Ninth Circuit Court of Appeals held that the same-sex marriage bans, as well as
constitutional amendments, of Idaho and Nevada, and their refusal to recognize same-sex
marriages performed legally in other states, violated the Equal Protection Clause. In
California, where the state legislature had legalized same-sex marriage, only for voters to
repeal the law through an initiative 18 that made that law constitutional, the Federal District
Court found Amendment 8 to be a violation of the Federal Equal Protection Clause, and
California chose not to appeal. Michael Hardwicks challenge to the sodomy laws in Georgia
was dismissed by the federal district court without trial, but, in an appeal to the United States
Court of Appeals for the Eleventh Circuit, the divided bench of justices looked at reasoning
from those cases in the 1960s and 1970s, where the Supreme Court had established and
refined a fundamental right to privacy.

The Supreme Court on Monday ruled that existing federal laws prohibit employment
discrimination based on sexual orientation or transgender status, an important win for
advocates for gay rights and for the emerging transgender rights movement -- and an
unexpected victory by a increasingly conservative court. On June 26, 2013, the US Supreme
Court held Section Three of the Defence of Marriage Act was unconstitutional, and the
federal government could not discriminate against lesbian and gay couples who are married
in order to establish federal benefits and protections. The United States Supreme Court, in the
15
Supra Note 12
16
Ibid
17
Supra Note 12
18
U.S. CONST. amend. VIII

13
case of United States v. Windsor, has ruled unconstitutional the 1996 act which declared, for
purposes of federal benefits, marriage to be defined as between a man and a woman. In 1996,
the Supreme Court considered gay rights issues again in Romer v. Evans19, a challenge to a
provision of Colorado’s constitution (adopted in a 54%-46% vote) prohibiting the state or
subdivisions thereof from passing any law giving preferred or protected status to
homosexuals.

PART 3

Conclusion

The growth and collapse of sodomy laws in the United States and United Kingdom is a prime
example of how the law has been applied to either symbolise the idealistic values that society
desires to advance or to justify the social norms of sexuality. However, as with many legal
weapons, these laws were primarily tools of oppression used by the majority against members
of minority groups, and the sexual standards they disseminated began to show less and less
similarity to mainstream ideas in US society. In addition to bringing regulations more in line
with modern sexual standards, the repeal of these bans as a result of the legal challenges in
Bowers v. Hardwick20 and Lawrence v. Texas21 also served as a sign of how far homosexual
individuals' acceptance has advanced. The Indian legal system has been heavily influenced by
the legal developments of USA and UK.

Even though through cases like … have decriminalized homosexuality, the development
towards the acceptance of the same remains a tough road ahead. Acceptance for many ideas,
religions, perspectives, inclinations, has a long history in India. India is a strongly religious
society, yet it is also a country that has tolerated non-religious minorities. According to
Section 377 of the IPC, an unnatural offence according to the Naz Foundation
judgement occurs when two consenting adults of the same sex engage in the same sexual
action. This offence carries a maximum 10-year jail sentence. However, since society has
developed and the Supreme Court's decision in favour of sexual minorities given them at

19
Romer v. Evans, 517 U.S. 620 (1996)

20
Supra Note, 12
21
Supra Note. 14

14
least some constitutional immunity, they now have a legal framework to use to fight back
against prejudice. However, society must also play a part in embracing what is natural and
welcoming the LGBT community.

 The Operational Creditor is a company incorporated in Dubai, UAE, engaged in the

business of trading in metals.

 The Corporate Debtor approached the Operational Creditor for the supply of Copper
Cathodes and entered into a Sales Contract on 4th December 2018.

 The Operational Creditor supplied the goods to the Corporate Debtor but the
Corporate Debtor failed to honor its obligations and defaulted on a payment of USD
18,67,080.88 along with interest.

 The Operational Creditor made several requests for payment, and the Corporate
Debtor acknowledged the debt but failed to make the payment.

 The Operational Creditor issued a statutory demand notice under the Insolvency and
Bankruptcy Code, 2016, demanding the outstanding amount from the Corporate
Debtor.

 The notice was served, but there was no reply from the Corporate Debtor.

 The date of default is stated as 3rd April 2019.

 The petition under section 9 of the IBC was duly served on the Corporate Debtor, and
the Corporate Debtor admitted its business relations with the Operational Creditor.

 The Corporate Debtor explained that due to the sudden death of its promoter on 16th
June 2019, the company faced financial difficulties and was unable to pay the
Operational Creditor's dues.

 The Director of the Company was authorized to make statements and instruct an
attorney on behalf of the Corporate Debtor.

 The reply affidavit from the Corporate Debtor confirmed that they received the goods
under the Sales Contract, admitted the outstanding amount, and attributed the inability
to pay to the promoter's death and resulting financial crisis.

15