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Unnatural Sexual Offences

"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.

Punishment for 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 on 18 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 husband?
    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

References:
  • https://indiankanoon.org/doc/100472805/
  • https://indiankanoon.org/doc/1052165/
  • https://indiankanoon.org/doc/1279834/
  • https://indiankanoon.org/doc/1836974/
Written By: Divya, A Student Of New Law College, Pune.

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