"Our lives begin to end the day we become silent about things that matter." -
Martin Luther King Jr.
NCRB (National Crime Record Bureau) in 2015, for the first time had published
data on "Unnatural Sex
". According to the data, across the country 1148 cases of
"unnatural sex" were reported in 2014.Unlike any other section in IPC, section
377 which specifically deals with criminalizing "Unnatural sexual offences" has
been in the eye of a storm for a very long time. Section 377 of the IPC was
introduced in 1861 during the British rule of India. Modelled on the Buggery Act
of 1533, it makes sexual activities "against the order of nature "illegal.
Before we go ahead with the article, we have to make sure we understand what do
we really mean when we use the term "Unnatural Sexual Offence "and how is it
different from rape. Some laws were made to describe Rape and its punishments
and some laws were made to describe Unnatural sexual offence and its
punishments. So, firstly let's talk about Rape. The word "Rape" arises from the
Latin word 'rapio' which means to seize.
Rape is a sexual violation against the
will of a women, by fraud or force. Section 375 of The Indian Penal Code deals
with sections related to rape and its punishment. Section 377 of the IPC
criminalizes any "unnatural" offences with either life imprisonment or
imprisonment which may extend to ten years, and a fine. It draws parallel from
laws prohibiting sodomy and bestiality in England. It is very important to note
that consent is wholly immaterial when it comes to unnatural sexual offences.
Now, The Black's law dictionary defines natural as a something pure or true
distinguished from something artificial or contrived and to determine what
natural means is that every instrument or organ of the body had a specific
function to perform, and therefore, using such an organ for a purpose against
its principal function is unnatural As per this logic, every form of sex other
than penile vaginal will be considered as unnatural.
Also, anything other than
procreative sex as unnatural. This logic though prima facie illogical has been
endorsed by courts in various cases. In Khanu v Emperor it was held that "the
natural object of carnal intercourse is that there should be the possibility of
conception of human beings, which in the case of coitus per os is impossible".
What Are The Legal Provisions Dealing With Unnatural Sexual Offences
Section 375 defines rape and Section 376 includes its punishment. Now coming to
Unnatural sexual offence, section 377 describes it. According to Section 377 IPC,
any person who commits unnatural carnal intercourse with a man, woman or animal
must be punished under this section. The penetration in this section must be
done into the anus.
That's one major difference between Rape and Unnatural Sexual Offence, Rape
includes penetration into the vagina, mouth, urethra or anus of a woman or makes
her to do so with him or with any other person but in unnatural section
penetration must be done into the Anus. Also, in Rape offence is against women
but in Unnatural sex it's not just confined to women, but includes men and
animals too. In "Unnatural sexual offence" consent is immaterial.
this offence is Imprisonment which may extend to 10 years with fine or
imprisonment for life. The term "imprisonment for life" was substituted for
words "transportation for life" by Act XXVI of 1955, section 117.Unnatural
sexual offence consists in a carnal intercourse committed against the order of
nature by man with man, or in the same unnatural manner with woman, or `by man
or woman in any manner.
The ingredients of Section 377 are:
- The act should be against the order of nature.
- The accused must have carnal intercourse with a man, woman or animal.
- The act was done voluntarily by the accused.
- Proof of penetration.
In Childline India Foundation & Anr vs Alan John Waters & Ors
March, 2011 it was held that Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section."
The Supreme Court of India on September 6,2018 announced that consensual adult
gay sex is not a crime anymore and article 14 and 21 of Indian Constitution
contradict the present view of Section 377.Except for gay sex, section 377 IPC
remains in force including sex with minors, non-consensual sexual acts, and
bestiality. Now for the unnatural sexual assault with female has comes under
rape and sexual assault with child whether male child of female child deals with
the POCSO act.
Meaning Of The Phrase "Against The Order Of Nature"
The courts in India have interpreted the term "carnal intercourse against the
order of nature" so broadly that it now includes from oral and anal sex to
penetration into artificial orifices such as folded palms or between thighs.
Such a wide application of section 377 where the language itself is not very
clear has led to arbitrary application of the law and thus questions were raised
regarding the constitutional validity of this section.
Apart from this, section 377 clearly makes homosexuality illegal on the ground
that it is against the order of nature. This has also led to various
controversies in view of recognition of right to freedom as a fundamental human
right, it is considered world over that criminalization of homosexual acts is a
clear violation of right to privacy. In view of arbitrariness of section 377 and
violation of basic fundamental rights the constitutional validity of this
section was challenged in the court.
Decriminalisation of Section 377 of the Indian Penal Code
Originally Section 377 included private consensual sex with adults of same sex.
Naz Foundation Vs. Govt. of NCT of Delhi (2009)
was one of the first
cases wherein Section 377 of the IPC was held unconstitutional as it
discriminated against LGBTQ community of the country.
On November 2018, Supreme Court decriminalized struck off some parts of Section
377 of the IPC decriminalizing homosexuality which held violative of Article 14
(Equality before Law, Article 15 (Prohibition of discrimination on the basis of
race, religion, caste, sex, place of birth), Article 21 (Protection of life and
liberty) and Article 19 (Freedom of expression) of the Constitution.
While the judgment goes a long way in removing the stigma attached with the LGBT
community, a multi-pronged approach is required to address prejudice and
discrimination prevalent in society.
Sodomy And Bestiality
Modern usage of the term "sodomy" refers to anal sexual activity between two
males (homosexual sodomy), a man and a woman (heterosexual sodomy), or a guy and
a child, who may be male or female, which is nearly the same as rape. Another
name for it is buggery. When the passive agent is an adult, it is also known as
GERONTOPHILIA, and when the passive agent is a child, it is known as PAEDENRASTY.
In contrast to rape of an adult woman, the issue of consent is not taken into
account in this case, and both criminals face punishment under Section 377 IPC.
Some legal systems consider sodomy a crime, while many others view it as a sign
of abnormality. Even when the connections are voluntary and between two legally
consenting adults, homosexual activity can result in harsh penalties, including
life in jail. It appears that so-called sodomy regulations, which in reality
forbid a variety of sexual encounters, also apply to married couples. The laws
of several other countries, including Denmark, France, Italy, Sweden, and
Switzerland, do not contain any such restrictions. Bestiality means sexual
intercourse between a person and an animal.
It is imperative to note that India's government continue to criminalise
bestiality under Section 377 and uphold the language that makes the offence
punished up to 10 years in jail in order to protect animals from sexual abuse.
The Prevention of Cruelty to Animals Act, 1960, our country's main animal
protection law, also needs to be updated to make bestiality a punishable offence
and add tougher penalties for animal cruelty. This would preserve not just the
respected wildlife of India but also our cherished citizens.
Provisions under the POCSO Act
According to NCRB data, the number of cases registered under POCSO increased by
more than 30% between 2016 & 2020 while the pendency of the cases in courts
crossed 94% by the end of 2020. In 2012, when the numbers of child abuse cases
were rising enormously, the Government of India passed a special gender-neutral
law- the POSCO (Protection of children from sexual offences) Act. Which came
into force on 14 Novermber,2012. The POCSO Act consists of 9 chapters dealing
with offences, punishments and procedures.
Section 9 & 10 of the POCSO Act, deals with the aggravated sexual assault on a
child and section 6 deals with aggravated penetrative sexual assault
Frequently Asked Questions (FAQs)
- Is Section 377 bailable or not?
Section 377 is a non bailable offence.
- When did Section 377 come into force?
Section 377 was introduced in 1861 during the British rule in India
- Can a wife file a case for unnatural sexual offences against her
Yes, a woman can file a case against her husband in activities pertaining to
unnatural sexual offences, as it penalises anybody involved in such an
offences regardless of gender identity and consent is also immaterial.
- If "A" commits anal intercourse with his dog, A will be liable for?
In this case, "A" will be liable for Bestiality
Written By: Divya
, A Student Of New Law College, Pune.