Unnatural Offences Under the IPC - Section 377

Section 377 of the Indian Penal Code deals with unnatural offences. The Indian Penal Code, specifically Section 377, stipulates that any individual who engages in voluntary carnal relations against the natural order with a man, woman, or animal faces life imprisonment, or imprisonment of any kind for a maximum of ten years, along with a fine. According to the description in this section, having sex is enough to qualify as sexual contact. This section discusses the offences of sodomy and bestiality under English law.

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This Story also Contains

1. Meaning of Unnatural Offences
2. History of the legislation on unnatural Offences
3. Essentials for Unnatural Offences
4. Types of Unnatural Sexual Offences
5. Legal Provisions Dealing with Unnatural Sexual Offences
6. Implications of Section 377 of IPC
7. Meaning of Against the Order of Nature
8. Provisions of Unnatural Sexual Offences under the POSCO Act
9. Case Laws on Natural Offences
10. Conclusion

Meaning of Unnatural Offences

"Unnatural" can mean aberrant, deviant, but not spontaneous. A reason is necessary for an unnatural offence to be considered "voluntary." Considering that anything involving the body, particularly sexual urges and behaviours, is stated to be "carnal" Anyone who willfully disobeys the natural order by having sex with a man, woman, or animal risks up to ten years in either sort of jail in addition to a fine under Section 377, which deals with unnatural offences.

History of the legislation on unnatural Offences

The Indian Penal Code was written and enacted in 1861 by Lord Macaulay during the British Empire. British law has therefore had a significant influence on it. Sodomy was punishable with hanging in the 1533 Buggery legislation, which was revived by Queen Elizabeth I in 1563. Therefore, the later prohibition of sodomy in the British colonies was based on this statute. Thus, Section 377 of the Indian Penal Code originates from the Buggery Act of 1533. It is important to note that Parliament has not amended this act since it was passed. Based on Judeo-Christian moral and ethical standards, which form the basis of this regulation, homosexuality is regarded as deviant and against the natural order since sex is only thought of as a means of procreation. Making the distinction between what is and is not natural becomes crucial for carrying out Section 377. It also becomes crucial to ascertain whether homosexuality is against the natural order.

Essentials for Unnatural Offences

Here are the essentials under which unnatural offences will be offensive under Section 377 of the IPC

• "Voluntary carnal intercourse" is a requirement.

• "Against the order of nature - it may be with any man, woman, or animal" is the requirement.

• Presence of penetration.

Types of Unnatural Sexual Offences

Lesibinism

It refers to female homosexuality. Lesbians are women who find themselves attracted to other women romantically or sexually. Tribalism is the act of having sex with another woman or someone who is vulvae-positive. Tribalism is seen as an aberrant sexual transgression since it is not seen as a part of the natural order. Most people have sex.

Sodomy

Any non-vaginal sexual penetration is referred to as sodomy. Laws against sodomy usually target gay men. These days, the word "sodomy" frequently describes anal intercourse, which is similar to rape, between two men, a man and a woman, or a man and a male or female kid. In legal terms, this conduct is also considered a sexual offence and a transgression of nature's order.

Bestiality

It describes intimate relations between a human and an animal. There is also an act under this category that is deemed unlawful because it goes against the natural order.

Consent is important in this kind of situation as well. Consent is widely understood to consist of two elements: the ability to communicate and the capacity for consent. The bestiality category makes no mention of these two components. The animals can't communicate vocally that they agree. We don't take into consideration the impossibility of consent. Likewise, authorization is not lawful in this particular circumstance.

Legal Provisions Dealing with Unnatural Sexual Offences

Rape is defined in Section 375, and the associated punishments are listed in Section 376. Section 377 defines an unnatural sexual offence. Under Section 377 IPC, there are penalties for anyone having unnatural carnal intercourse with a man, woman, or animal. It is necessary to penetrate the anus with this segment.

Rape and Unnatural Sexual Offense differ significantly in that the former requires penetration into the vagina, mouth, urethra, or anus of the victim, whilst the latter only requires entry into the anus. Additionally, while the crime of rape is only committed against women, the crime of unnatural sex also targets males and animals. Consent is irrelevant in "Unnatural sexual offence".

For this offence, the penalty is imprisonment for a maximum of ten years together with a fine or life in prison. Act XXVI of 1955, section 117, replaced the phrase "transportation for life" with "imprisonment for life."Any carnal act committed by a man against another man, against a woman in an equally unnatural manner, or between a man and a woman in any manner that defies the natural order is considered an unnatural sexual offence.

Implications of Section 377 of IPC

For the past 140 years, the concept of having sex without the ability to conceive has been used to define homosexuality as a perversion, a horrible crime, the product of a disordered mentality, etc. According to the judiciary, section 377 only gives the state the right to harass and persecute anyone who identifies as someone who is not straight.

The true threat posed by Section 377 is how deeply ingrained it is in various social contexts, such as the state, the media, the medical community, and families. It consequently begins to surface in casual conversations and gradually becomes a part of society at large. As a result, there is a culture that gives legal sanction to violence against LGBT people. Section 377 expresses the severe social condemnation of LGBT identity and provides a justification for friends, family, and other governmental and societal institutions to harass homosexual individuals.

By permanently sentencing a group of people to a life of harassment, humiliation, and dehumanizing treatment at the hands of the legal system, the criminalization of homosexuality further denies these individuals their right to full and moral citizenship.

Meaning of Against the Order of Nature

The term "carnal intercourse against the order of nature" has been defined by Indian courts so broadly that it now encompasses oral and anal sex as well as penetration into artificial orifices such as folded palms or between thighs. Because section 377 has been applied so broadly and the text is not entirely clear, the law has been used arbitrarily, raising concerns about its constitutionality.

In addition, section 377 expressly prohibits homosexuality because it is against the natural order. This has also given rise to many debates since, while the right to freedom is acknowledged as a basic human right, criminalizing gay activity is widely regarded as a blatant infringement on an individual's right to privacy. The constitutional legitimacy of section 377 was contested in court because of its arbitrariness and violation of essential fundamental rights.

Provisions of Unnatural Sexual Offences under the POSCO Act

The POCSO Act is the 2012 Protection of Children from Sexual Offenses Act. This statute is designed to protect minors from sexual offences. This act covers inappropriate sexual offences as well. This Act is gender-neutral and applies to children of both sexes.

According to NCRB data, the number of POCSO cases registered increased by more than 30% between 2016 and 2020; yet, at the end of 2020, over 94% of court cases remained pending. The POSCO (Protection of Children from Sexual Offences) Act was enacted by the Indian government in 2012, amidst a sharp increase in the number of child abuse cases. The law is gender-neutral. which became effective on November 14, 2012. Nine chapters of the POCSO Act address offences, sanctions, and procedures.

The POCSO Act addresses aggravated sexual assault on children in sections 9 and 10, while aggravated penetrative sexual assault is covered in section 6.

Case Laws on Natural Offences

In the case of, Naz Foundation v. Govt. of NCT of Delhi

It was one of the first instances where the discriminatory Section 377 of the IPC against the LGBTQ minority in the nation was ruled to be unconstitutional. A section of Section 377 of the Indian Penal Code, which decriminalized homosexuality, was reversed by the Supreme Court in November 2018. It was determined that these portions violated several provisions of the Constitution, including provisions 19, 21, 15, and 14.

Although the verdict significantly lessens the stigma associated with the LGBT community, prejudice and discrimination that are pervasive in society still need to be addressed through multiple strategies.

In the case of G.D. Ghadge v. State of Maharashtra

In this case, it was held that proof of the act's completeness is not necessary, and even the smallest degree of penetration is adequate. "To penetrate" in this context refers to "to enter, pass through, or force a passage through." According to the explanation annexed to the Section, penetration of any degree is necessary to establish carnal intercourse.

Conclusion

News stories of unusual sexual assaults have been around for a while. The statutes have been interpreted in a variety of ways, and studies on their scope have also been conducted. It is still required to draft exact sentences that outline the scope of the operation. But a lot of information has surfaced since the Navtej Singh Johar ruling, and the Supreme Court has granted the LGBTQ community some rights. One of the most important factors in determining whether an act is constitutional is consent. I believe that the word "penetration" restricts the clause's scope and ambiguously defines some offences under the law.