THE EVOLUTION OF UNNATURAL OFFENCES AND ITS EXCLUSION IN THE BHARATIYA NYAYA SANHITA

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Categories: Journal

THE LAWWAY WITH LAWYERS JOURNAL

VOLUME:-16  ISSUE NO:- 16 , OCTOBER 26, 2024

ISSN (ONLINE):- 2584-1106

Website: www.the lawway with lawyers.com

Email: thelawwaywithelawyers@gmail.com

Authored by:-  Rithika.J

CO-AUTHOR:- Sharine.X,

 

THE EVOLUTION OF UNNATURAL OFFENCES AND ITS EXCLUSION IN THE BHARATIYA NYAYA SANHITA

 

Abstract:

India’s legal system combines old traditions with colonial influences. Among the more contentious pieces of legislation was Section 377 of the Indian Penal Code (IPC), a colonial-era rule that criminalized “unnatural” sexual practices. Its inclusion represented Victorian morality rather than Indian ideals, sparking extensive discussion and legal issues regarding its applicability in modern India. However, the omission of Section 377 from the recently proposed Bharatiya Nyaya Sanhita (BNS) is viewed as a positive step in aligning India’s legal code with current social, moral, and ethical ideals. This article delves into the history, impact, and final elimination of Section 377 from Indian legislation, which marked a significant shift in the acknowledgment of human rights and social justice in India. 

Key words:

Unnatural Offences, Section 377 of IPC, Consent, Exclusion of provision

 

Introduction: 

For more than a century, Indian criminal law has been governed by the Indian Penal Code (IPC), which was enacted in 1860. Among its various provisions, Section 377 was one of the most contentious, as it criminalised what were called “unnatural offences.” These included sexual acts that went “against the order of nature,” such as consensual same-sex relationships, bestiality, and non-peno-vaginal intercourse. For decades, this section was criticised for its broad and ambiguous language, which resulted in the marginalisation and persecution of India’s LGBTQ+ community. In a landmark decision in 2018, the Supreme Court of India decriminalised consensual homosexual acts, repealing Section 377 and signalling a significant shift in Indian law. In line with this shift, the Bharatiya Nyaya Sanhita (BNS), which is proposed to replace the IPC in 2023, reflects modern legal principles by eliminating Section 377’s provisions that criminalised consensual adult relationships. Section 377 of the Indian Penal Code (IPC), which criminalised unnatural sexual offences, has sparked numerous debates about morality, legality, and societal norms. The Bharatiya Nyaya Sanhita (BNS) has changed the way sexual offences are handled in India’s legal system. This article investigates the nuances of unnatural offences under Section 377 of the IPC, the reasons for their exclusion from the BNS, and the underlying socio-legal principles.

 

Unnatural sexual offences:

The British added Section 377 into the Indian Penal Code in 1861. The rule was designed after England’s Buggery Act of 1533, which prohibited “carnal intercourse against the order of nature.” The law primarily targeted homosexual conduct, but it was so ambiguous that it might cover a wide spectrum of non-heteronormative behaviors.

Under Section 377 of IPC, 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.

Section 377 of the Indian Penal Code (IPC) defines unnatural sexual offences as sexual acts that deviate from what is perceived to be “natural” within the legal framework. These acts were widely criminalised, and they included: 

  1. Sodomy refers to anal or oral intercourse between individuals.
  2. Tribadism (Lesbianism): Sexual relations between two women, especially non-penile forms of intercourse. 
  3. Bestiality: Sexual encounters between humans and animals.

 Section 377 effectively criminalised all forms of non-penile-vaginal intercourse, classifying them as “unnatural” sexual acts. These acts were punishable by law regardless of the consent of the parties involved, thus falling under the broad category of criminal offences. It covered any type of sexual activity that was not considered “natural,” including anal sex, oral sex, and bestiality, regardless of gender. Although the law could theoretically apply to both heterosexual and homosexual activities, it was primarily used to target and criminalise the LGBTQ+ community, specifically homosexual relationships.

The law allowed for life imprisonment or up to ten years in prison, plus a fine. The severity of the punishment made the law oppressive, particularly in consensual adult relationships.

Section 377 became a significant barrier to LGBTQ+ rights in India. It promoted discrimination, stigma, and harassment against people based on their sexual orientation. Police and authorities frequently misused the law to harass and intimidate members of the LGBTQ+ community.

History of the Three Unnatural Offences: Lesbianism (Tribadism), Sodomy, and Bestiality:

Lesbianism (Tribadism) was rarely explicitly mentioned in ancient Indian texts, but it was criminalised as a result of British colonial legislation. Women engaging in sexual acts with one another were frequently marginalised in ancient cultures, but they were not legally pursued until Western legal structures, particularly Victorian morality, classified such acts as deviant. The term “tribadism” was historically used in the West to reflect a misinterpretation of lesbian relationships as purely physical and unnatural.

Sodomy, or anal intercourse, has been a source of legal and religious debate for centuries. While some sexual practices were frowned upon in certain communities in pre-colonial India, sodomy was not criminalised until British colonialists arrived, bringing with them their interpretation of Christian morality. Sodomy was considered a “crime against nature” in English legal history, and it was severely punished. Section 377 was introduced in India in 1860, mirroring the British “Buggery Act,” which criminalised all non-vaginal intercourse.

Bestiality: The act of engaging in sexual activities with animals has historically been considered deeply abhorrent in many cultures, including India. Unlike sodomy and lesbianism, bestiality has been consistently condemned by both law and society because it violates human morality while also causing non-consensual harm to animals. The influence of British law also strengthened the criminality of bestiality in Indian law under Section 377.

 

The Role of Consent in the Legal Consideration of Unnatural Offences:

Consent is a critical factor in deciding whether a sexual act should be criminalised. Section 377 of the IPC criminalised the act itself, regardless of whether the parties involved consented. However, this blanket criminalisation was deemed unjust, resulting in the decriminalisation of consensual homosexual relationships. In the legal framework, the presence of consent between two adults is regarded as a critical factor in distinguishing criminal acts from private and personal ones. Lack of consent, or situations in which consent cannot be obtained (such as bestiality), is still a punishable offence due to the harm and violation it causes.

 

Why Unnatural Offences Are Considered Crimes by Law and Not by People?

The legal concept of “unnatural offences” is frequently derived from historical, religious, and moral beliefs that certain sexual acts deviate from the natural purpose of sex—procreation. The British largely imposed laws like Section 377 to maintain moral and social order, reflecting Christian values and the Victorian belief that sex should be used solely for reproduction. However, society’s attitudes towards these acts have evolved over time. Public perceptions, especially in modern societies, do not always match these legal definitions. For example, consensual homosexual relationships are now widely accepted in many parts of India, particularly in cities, where people regard sexual expression as a private matter that should not be regulated by the government. The global LGBTQ+ rights movement has had a significant impact on public attitudes, resulting in the decriminalisation of homosexuality in India in 2018, when the Supreme Court read down Section 377 to exclude consensual same-sex acts between adults.

 

Legal Challenges and Decriminalization:

  1. Naz Foundation Case (2009):

In Naz Foundation v. Government of NCT of Delhi (2009), the Delhi High Court ruled that Section 377 violated fundamental constitutional rights, particularly the rights to equality (Article 14), freedom of expression (Article 19), and life and personal liberty (Article 21). The court decriminalised consensual homosexual acts between adults, ruling the law unconstitutional in so far as it applied to such acts. This decision was a significant victory for LGBTQ+ rights, but the celebration was short-lived.

 

  1. Supreme Court’s Reversal (2013):

The Supreme Court of India overturned the Delhi High Court’s decision in the Suresh Kumar Koushal vs. Naz Foundation case in 2013. The court ruled that Section 377 lacked any constitutional flaws and that the legislature should decide the fate of the law. This decision once again criminalised consensual same-sex relationships, causing widespread outrage and disappointment among LGBTQ+ activists and allies.

 

  1. Navtej Singh Johar Case (2018):

In September 2018, the Supreme Court of India issued a landmark decision in the case of Navtej Singh Johar vs. Union of India, effectively decriminalising consensual homosexual acts between adults. The court unanimously ruled that Section 377, which criminalised consensual sex between adults, was unconstitutional. The judges emphasised that the LGBTQ+ community deserves the same dignity, rights, and freedom as everyone else. The decision was hailed as a historic step forward for human rights and equality in India.

 

Why Is This Section Not Included in the Bharatiya Nyaya Sanhita?

With the drafting of the Bharatiya Nyaya Sanhita (BNS), a deliberate effort was made to modernise Indian criminal law and align it with evolving understandings of human rights and social norms. Section 377, which criminalised unnatural sexual acts, was regarded as incompatible with the values of a progressive society. One of the primary reasons for its exclusion is the Supreme Court’s 2018 decision to decriminalise consensual homosexual acts among adults. By omitting Section 377 from the BNS, lawmakers intended to affirm individuals’ rights to engage in consensual sexual activity without fear of criminal prosecution. The BNS reflects a shift in legal thinking in which consensual acts in private between adults are no longer considered the responsibility of the state, as long as no harm is caused. Over the last decade, Indian society has become increasingly welcoming to the LGBTQ+ community. Pride marches, media coverage, and increasing awareness have all contributed to a progressive shift in public perception. The exclusion of Section 377 reflects the shifting norms.

 

How is psychological sex different from biological sex?

Biological sex is the sex that other  person’s define that individual by his/her birth. Psychological sex is the sex that the individual identifies by his/her sexual feeling. Biological sex is mostly based on physical. While Psychological sex is based on mentality or feeling. Identification of biological sex has nothing to do with that persons attraction towards another individual of same gender or opposite gender. But psychological sex is all about an individuals feelings towards another individual. The biological sex of a person can be identified by other persons easily. But psychological sex is exclusively felt and identified by the individual himslef/herself only, just because it is a feeling which is not common among individuals doesn’t mean its some abnormal mental condition.

 

Whether section 377 should be included or not?

Section 377 of IPC can be included in BNS with some changes like excluding two offences analysing the changes that are happening among the individuals and the way the society approaches those changes and by giving importance to the element of consent. The element of consent is very important in case to constitute crime. If the victim suffered the injury voluntarily then it doesn’t constitute crime same should be applied in this case where the consent should be made only express and not implied because implied consent has its own set of complications in this case. Hence the element of consent should be strictly and thoroughly analysed if this section is included as a crime in BNS.

 Not including this section will also indicate the recognition for the psychological sex concept and the other aspects of biological sex. Not including this as a crime will be in the favour of the people who recognise different from what is know to be common. This is one of the main reason this is excluded from being considered as a crime.

 

Why Should we exclude lesbianism and sodomy from a crime by setting limitations?

Lesbianism means he quality or characteristic in a woman of being sexually or romantically attracted exclusively to other women. Sodomy anal sexual intercourse denoting homosexual practice between men. Both of these practices should be excluded from being considered as a crime because people who said to identify as gay and lesbians are said to practice this. But this should also be subjected to limitations with the element of consent. This doesn’t mean only the people who said to identify in the above mentioned category will engage in such practise but people other then then may also misuse it or the above mentioned category itself may misuse it hence it should subject to the element of consent. The consent of parties being involved must be subject to free consent without any deceitful means or elements.

 

Why bestiality cannot be excluded as a crime?

             Bestiality instead refers to cross-species sexual activity between humans and non-human animals. This cannot  be excluded from the list of crime because this act is not subject or cannot be subject to any exceptions or limitations. As mentioned above this act is done with the animals which cannot express their consent and it is strictly against the order of the nature. This act is cruelty to the animals. Every citizen has the duty according to the constitution to protect the nature and its resources. This is a form of torture and exploitation of animals. Animals being a very important from of natural resources which should be even though not protected but shouldn’t be exploited or disturbed against its course of nature. The element of consent has no role to play in this case and no other exceptions of a human mentality can be given for this case because this is cruel and very bad as well as harmful. Hence this act of bestiality should be included as a crime and severe action should be taken against the offender.

 

Why can unnatural sex be a ground for divorce and not a crime?

             According to Hindu Marriage act,1955 section 13(2)(ii) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; this is considered to be a ground for wife to divorce the husband but it is not included as an offence or crime under BNS 2023.This is because of the recent identity crises among individuals in the society and the societal reaction to their identities. But this can also be included as crime subject to limitations as it being a ground for divorce .

 

Conclusion:

          This article dealt with the meaning of unnatural sexual offences ,history of unnatural sexual offences, the role of consent in legal consideration of natural sexual offences, the reason why natural sexual offence is considered as crime by law and not by people, legal challenges of natural sexual offences and decriminalisation of natural sexual offences, why is this section not included in BNS, the difference between psychological sex and biological sex, the debate on inclusion of section 377,excluding lesbianism and sodomy from being a crime, including bestiality as crime, the reason of natural sexual offence being considered as a ground for divorce and not as a crime and finally it is concluded that if this section is included as a crime then it should be subject to the element of consent and if it is not included it is to protect the interest of people who identify as lesbians and gay and measures should be taken from preventing people from misusing it.

 

References:

Indian Penal Code, 1860, Section 377.

Naz Foundation v. Government of NCT of Delhi SCC 712, 2009

Suresh Kumar Koushal vs. Naz Foundation AIR 201 SC 563

Navtej Singh Johar vs. Union of India AIR 2018 SC 4321

Prof.S.N.Misra, Indian Penal Code, 23rd edition

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