This Article is written by Shambhavi Singh (a student of Symbiosis Law School, Hyderabad doing a BA.LLB.)
Introduction
Section 377 of the Indian Penal Code 1860 defines an unnatural offence as “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”[1]. When we look at the definition we notice the word ‘unnatural’ which depicts opposition to nature, aberrant, but not unconstrained. The other word ‘voluntarily’ implies that an unnatural offence must be committed with purpose. The term ‘carnal’ suggests things pertaining to bodily, sexually motivated demands and actions. The term also utilises the phrase ‘in opposition to the course of the environment’ without more explication, leaving it up to the judge to determine. According to this clause, homosexuality is understood as an abnormal sin since it is believed to be at odds with the biological sequence. As a result, the constitutionality of these sections is called into doubt. Thus, in order to evaluate the constitutional legitimacy of these sections and the grounds for their inclusion in the IPC it is important to be aware about the background from where the topic for unnatural offence emerged.
Under English law Bestiality and Sodomy are the same terms which correlate with unnatural offences. In such cases of unnatural offences acceptance is presumed as irrelevant. In such cases the person giving approval for any such offence will surely be held liable as an accomplice. In UK all offences are mentioned against the person act of 1861, also in English law Sodom and bestiality are laid down under section 61 and not under any statue. Lord Macaulay was the one who designed our Indian Penal Code, which was implemented by the British in 1861. Because it is heavily impacted by British law. It was also presumed that such offences which was regarded a misdeed in Britain at the time had been deemed a felony under the IPC to a greater degree[2].
Sodomy was punished by hanging under the Buggery Act of 1533, which was re-performed in 1563 by Queen Elizabeth I and paved the way for eventual convictions of sodomy in Former colonies. Section 377 is derived from the Buggery Act of 1533.It also underlines that legislature has not changed the constitution since its establishment. As it was considered that the regulations are based on Judeo-Christian morality and ethics norms, which regarded sex as only functioning, that is, for conception, and homosexuality as an unnatural sex and a violation of the rule of order.
In the United States, one of the outcome measures of Kinsley’s research and progressions elsewhere was the model penal code authored in 1955 by the American Law Institute, which purposefully omitted the offences equivalent to the existing legislation in all positions at time refused as ‘consensual homosexuality,’ which also compelled the differences in legislation on unnatural offences in Illinois on 1961[3]. Researcher’s major goal is to deal with section 377 of the IPC and to also have analysis of legal laws relating to unnatural offence in UK and USA.
Research Findings
The antiquity of sec 377
The Manu Smrities, the utmost potent and extensive of the Upanishads, and is considered to be the very first legal text also punishes abnormal intimating activities. As per Manu Smrities, a man who engages in lesbian doings faces the consequences of taking a bath in his apparel, whereas a woman who is held liable of such behaviour faces a much harsher penalizing, including having her head shaved off all hair, two fingers severed, and being forced to ride on a donkey in front of whole public. A vey disincentive component can be found both in the punishments of manu smriti and section 377. So far the punishments are concerned, Segment 377 of the Indian penal code completely represents the Manu Smrities. A significant restraining aspect may be seen in each of them. While formulating the statute, the British substituted a sympathetic Indian mentality with an oppressive one. This statute was later repealed in the United Kingdom by the Sexual Offences Act of 1967. Homosexual act between two men with given consent by both of them and they have procured age to minimum 21 years was allowed under sexual offence act, the truth remains that homosexuality in India was criminalised until the twentieth century as a result of a mid-nineteenth-century colonial statute.
On 7th December 2001, a suit was filed in Delhi High Court by a non- governmental organisation, (NFIT) Naz Foundation India Trust along with National Aids Control Organization to remove the “unnatural crimes” clause of the Indian Penal Code of 1860, which criminalises males who have intercourse with other men. In Naz Foundation vs Government Of Nct Of Delhi[4] gave a legal challenge against Section 377 of the Indian criminal code stood denied by the Delhi High Court. According to the court, the legitimacy of a sodomy statute cannot be questioned by anybody who is “not harmed by it”. An advocate Aditya Bandhopadhyay beleived that, the administration utilised the three columns of traditional cultural reasoning to defend the legislation that resulted in the imprisonment of homosexuals. The obligation of the state is not simply a role, to prevent ‘unnatural sex,’ or else the civil society will collapse. The fact that our culture does not allow homosexualism, disdain the acceptance of anthropological human rights or the broader scope of our provisions of the constitution, justifies prosecution.
Natural versus Unnatural Offences
The question of natural vs unnatural is a recurring one. Who judges what is natural and what not and this leads to debates between people, given that humans have intervened in every aspect of the world? If the group is permitted to dictate the rules and force its preferences on the small groups,isn’t that a violation of our most sacred human rights? According to research, the majority of early human communities were polygamous.
According to a case law;Khanu vs. Emperor[5] “the inherent purpose of sexual penetration is that there should be the potential of notions of humans, which in the situation of coitus per os is inconceivable.” bodily dealings contrary to the natural command of things” partakes stood defined so widely through Indian courts that it is covering anything from oral and anal sex to insertion into manufactured apertures like folded hands or between thighs. Such a widespread enactment of Provision 377, where the text is in itself not very clear bout the provisions, and this has resulted in indiscriminate implementation of the legislation, raising issues about the fundamental legality of this article. Aside from that, Section 377 plainly renders homosexuality criminal on the grounds that it would be against the natural order. In light of the acknowledgment of the right to liberty as a basic human right, the subject is widely held that criminalising gay actions is a blatant infringement of the right to privacy[6].
Unnatural offences in UK
In the earlier times the history of England consists, a crime of sodomy’ was included into its common law in the context of safeguarding for individuals who threatened the Christian ideals on which the country was formed. The concept of a split between the Church and the state had not yet established in mediaeval times. The Church had its own tribunals to examine and condemn religious crimes, which were those deemed to jeopardise communal integrity, defile the monarch, or upset the racial or religious order of things[7].A depiction of initial English illicit regulations, published a bit afterwards in Norman French, detailed the sentences of scorching an alive person for publically condemned sodomists and traitors. Sodomy was viewed as an affront to God’s purpose, and as such, it drew the worst sanctions from civilization. Traditionally, it appears that the act was not confined to male sexual actions. It might involve any unethical intimating practices and could include sexual encounters with Turks and ‘Saracens,’ as well as Jews and Jewesses[8].
As an outcome of this historical process and resemblance, antisodomy laws, which were in force in Britain at the period of Coke and Blackstone, were rapidly sanctioned or approved in the vast domain of the British Empire, which encompassed roughly one-quarter of the world’s landmass and one-third of its population. To this diurnal, roughly 80 nations worldwide have illicit penalties for sodomy and other same-sex behaviours, whether consenting or not, and whether conducted in public or private[9].
This IPC clause was adopted by a significant amount of British colonies, ranging from Zambia to Malaysia, and includes Singapore to Fiji. The provision’s underlying proposition was that carnal practises against with the course of environment violated living person’s integrity and contaminated community to the point where, even if the ‘complainant’ asserted approval and stood of full phase, the conduct stood tranquil to punishment for the reason that more than the person’s will or body was at serious risk.
Unnatural Offences in USA
The phrase “the notorious crime against nature” was coined in California to denote both sodomy and bestiality. This wording, however, was soon abandoned, and the charges of sodomy and sexual intercourse with animals were separated. A felony[10] is committed by anybody who commits a crime against environment, whether with humans or animals. Although the legislation in North Carolina primarily relates to sodomy, bestiality, and buggery, it is nevertheless wide enough to include trafficking and crimes involving children. A crime against nature was commonly associated with sodomy under common law. The Supreme Court’s ruling in Lawrence v. Texas[11] had a significant impact on this combination of words. Section 21.06 of the Texas Penal Code, under which Lawrence and Garner stood imprisoned, is formally identified by means of the Homosexual Conduct Regulation. This legislation, however, was a result of the liberal stance of the initial 1970s. In most of the places where sodomy is still illegal, it makes little difference whether a couple participating in activity comprises of two males, women, or one of each. In Lawrence, the Court ruled that a Texas legislation that criminalised explicit sexual contact between two willing adult men was illegal because it infringed on the freedoms definite via the Fourteenth Amendment’s Due Process Clause. Despite the fact that Lawrence overturned anti-sodomy legislation, the offense against nature remains important. Anywhere away from that limit, there are legislation condemning sexual activity as a crime against nature[12].As per the New York Periods’ Linda Greenhouse, the Supreme Court would not have considered the problem only if a majority of the impartialities had previously settled to “reapproach” Bowers v. Hardwick[13], which maintained the legality of Georgia’s sodomy legislation. The verdict in that matter, which was decided by a voting of five to four, was a humiliation to the Court. Its thinking and phrasing were both embarrassingly crude[14].
Conclusion
Section 377 of the Indian criminal code of 1860 bans penises and non-genitalia intercourse as “against the desire of nature.” The legislation affects the rights of the lesbian, homosexual, bisexual, and queer (LGBT) community precise, although the subject principles can also be enforced on straight person residents. The case takes been pending in law court for a long period. In 2009, the Delhi High Court ruled that Segment 377 of the IPC, which prohibits “carnal intercourse against the order of nature with any male, female, or animal,” stood invalid. The ruling was, however, overturned by a bench of Supreme Court judges G.S. Singhvi and S.J. Mukhopadhya in December 2013. It reinstated the 1860 statute that criminalises willing intercourse between homosexual adults.
Article 377 of the Indian penal code requires infiltration. This is for the reason that the provision states that penetration is sufficient to establish the carnal interactions required for the felony mentioned in the segment. In other confrontations, because man can actually infiltrate, consensual sex between two males is conceivable and would be regarded an infraction beneath the clause. Proceeding the further pointer, because womenfolk cannot physically enter, this section officially excludes them from its scope. To put together it in another way, women cannot perform penetration, hence voluntary penetrative sex between two females is not awrongdoing under the clause. As a result, the provision states that a gay association amid two adults, both male, is an offence. Given the complexity, it is unclear if homosexual relations between two females would constitute an offence.After understanding and accepting the facts may be evident in nature, as once the statute was repealed, the common public embraced the third gender and no riots occurred. As a result, people have a better awareness and acceptance of modern law.
[1] Pratiksha S. Dubey, UNNATURAL OFFENCE UNDER SECTION 377 IPC, (April, 2018)
https://www.ijcrt.org/papers/IJCRT1893311.pdf
[2] Ibid
[3] Animesh Deep, Unnatural Offences: A Comparative Analysis with special references to UK and USA, (September 2019)
[4]Naz Foundation vs Government Of Nct Of Delhi& Ors. (2010) Cri LJ 94 (Delhi)
[5]Khanu vs. Emperor, AIR 1925 Sind 286
[6] KD Gaur, Indian Penal Code 618,(3rd ed. Universal Law Publ’g co pvt ltd.), (2013)
[7] The Hon. Michael Kirby, The sodomy offence: England’s least lovely criminal law export?
https://sas-space.sas.ac.uk/4824/20/02Kirby_TheSodomyOffence.pdf
[8] Ibid
[9] Corinne Lennox & Matthew Waites, 3 This alien legacy: The origins of ‘sodomy’ laws in British colonialism, (Human Rights, Sexual Orientation and Gender Identity in The Commonwealth), (pp- 83-124), (2013)
https://www.jstor.org/stable/j.ctv512st2.7
[10] a criminal conduct considered more severe than a wrongdoing in the United States and many other court systems
[11]Lawrence v. Texas, 539 U.S. 558
[12]Crime Against Nature, (Legal Information Institute), (May 2020)
https://www.law.cornell.edu/wex/crime_against_nature
[13]Bowers v. Hardwick, 478 US 186 (1986)
[14] Hendrik Hertzberg, Unnatural Law, (8 December 2002)
