§ 377 of the Indian Penal Code criminalises any “unnatural” offences with a with imprisonment for life, or extending to ten years, and a fine. It draws parallel from laws prohibiting sodomy and bestiality in England, consent being wholly immaterial. This paper looks at the history of this legislation, and examines certain critiques – how vague it is, the definition of what constitutes “natural” and the challenge upon its constitutional validity, and the reasons given by the Hon’ble High Court of Delhi and the Supreme Court of India.
This project will deal with the sentencing policy in cases relating to unnatural offences. For this purpose, Section 377 of the Indian Penal Code, 1860 which deals with unnatural offences will be analysed critically. The project will also deal with the constitutional validity of Section 377 and will suggest reforms in it.
Unnatural offences are covered in IPC under section 377. Section 377 of the IPC states that “ 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 be liable to fine”. As per the explanation provided under this section penetration is sufficient to constitute the carnal intercourse. This section corresponds to the offences of sodomy and bestiality under the English law. As evident from the language of this section, consent is wholly immaterial in the case of unnatural offences and the party consenting would be equally liable as an abettor. This section is very vague as what is against the order of nature is not possible to define objectively. What is natural and what is not is a subject of debate and has led to much confusion. As per this section homosexuality is construed as an unnatural offence as it is considered to be against the order of nature. This has led to many controversies and has led to questions regarding the constitutional validity of this section. Thus, in order to determine the constitutional validity of this section and the reasons for its incorporation in the IPC it is important to look at its historical basis.
History of the legislation
The Indian Penal Code was drafted by Lord Macaulay and was introduced in 1861 during the British time. Thus, it has been largely influenced by the British laws. What was considered crime in Britain at that time was also been made crime under IPC to a large extent. “Acts of sodomy were penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British colonies”.  Thus, Section 377 of Indian Penal Code derives its origin from the Buggery Act of 1533. It is important to note here that this law has not been amended by Parliament ever since its enactment. This law is based on Judeo-Christian moral and ethical standards which conceive of sex on purely functional terms, that is, for procreation and on this basis homosexuality is considered as unnatural and against the order of nature.
For the purpose of implementation of Section 377 it becomes important to determine what is natural and what is unnatural. Also, it becomes necessary to determine whether homosexuality is against the order of nature or not.
Natural v. unnatural
The Black’s law dictionary define natural as (1) “A fundamental quality that distinguishes one thing from another; the essence of something. (2) Something pure or true as distinguished from something artificial or contrived. (3) The basic instincts or impulses of someone or something”. To determine what is natural, functional basis is cited which basically means that every instrument or organ of the body has a particular function to perform, and therefore, using such an organ for a purpose inconsistent with its principal function is unnatural. As per this logic, every form of sex other than penile vaginal will be considered as unnatural. The same logic is used to denounce 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”. 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.
The constitutional validity of section 377 was challenged in the Delhi High Court in the case of Naz Foundation v Government of Delhi & Ors. In this case it was argued that s 377 on account of coverning consensual sexual intercourse between two adults in private, is violative of the fundamental rights guaranteed in Articles 14, 15, 19 and 21 of the Constitution. It was also contended that Article 21 can be curtailed only in case of compelling state interest which is missing in this case. The petitioner also contended that the legislative intent behind section 377 is based on stereotypes that are outmoded and have no historical or logical backing. They also argued that the expression “sex” as used in Article 15 also includes “sexual orientation” and thus according to Article 15 there can be no discrimination on the basis of sexual orientation. Broadly they prayed before the court that section 377 of IPC should be declared ultra vires to the constitution, insofar it criminalizes consensual sexual acts of adults.
The two wings of Union of India filed completely counter affidavit in this case. The Ministry of Home Affairs sought to justify the retention of section 377 on the grounds of public health, public disapproval, and social disgust of the act. On the other hand, The Ministry of Health & Family Welfare supported the claim of petitioners stating that the presence of section 377 in the statute book has hampered the HIV/AIDS prevention efforts and that its deletion would help in treating homosexuals suffering from HIV/AIDS.
The Delhi High Court rejected the contention of Ministry of Home Affairs on the ground that popular morality or public disapproval cannot be a valid ground for restricting the right under Article 14 and 21. The court stated that if there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality. India is a land of unity in diversity and our constitution drafters recognised this idea and incorporated it in our constitution in the form of various articles which recognises, protects and celebrates diversity. Section 377 of IPC by criminalising homosexuals only on account of their sexual orientation violates the constitutional morality. In the end, court accepted all the contentions of the petitioners and declared the part of section 377 ultra vires which criminalised consensual sexual acts of adults in private. However, the court also ruled out that the provisions of section 377 will still continue to govern non-consensual penile non-vaginal sex involving minors.
This order of the Delhi High Court was challenged before the Supreme Court in the case of Suresh Kumar koushal and another v Naz Foundation & others by groups of religious bodies and individuals including the All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council. They contended that section 377 was enacted by the legislature to protect social values and morals. The Supreme Court accepted this contention and set aside the order of the High court. The court stated that every legislation enacted by the Parliament or State legislature carries with it a presumption of constitutionality. This principal also applies to pre-constitutional laws. If no amendment is made to a particular law it may suggest that the legislature deems it fit and leave the law as it is. Post-independence almost 30 amendments in the IPC have been made in the IPC including amendments in the chapter of sexual offences under which unnatural offences fall. “However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision”. The court ultimately declared section 377 to be constitutionally valid. However, the court left it opens for the Legislature to delete or amend the law.
The Naz foundation has filed a curative petition challenging this judgement of Supreme Court. The matter is sub judice before the Supreme Court. However, as of now, section 377 is constitutionally valid and homosexuality is treated as an unnatural offence. Since, this section is operative as of now it becomes pertinent to see the sentencing policy in cases of unnatural offence.
The punishment in case of unnatural offences is as severe as that of rape. Unnatural offences cover all form of penetration other than penile vaginal and consent is immaterial in case of unnatural offences. The punishment may extend to imprisonment for life or imprisonment up to ten years and fine. In Norshiwan Irani, it was held that in case of offences made punishable under section 377, it is necessary that penetration, however little, must be proved strictly.
The age of the accused is a determining factor while giving punishment. In the case of Raju v State of Haryana, the appellant who was 20/21 years old was found guilty of committing sodomy upon a female of 9 years and sentenced to three years imprisonment. The court taking into consideration the nature of the offence and age of the appellant held that the accused should be kept in an environment of institution other than jail to ponder and repent over his perversity. Along with age, chances of reformation of accused are also an important factor in determination of sentence. In Amit v State of UP, the accused committed unnatural sex with a minor girl of aged 3 years and later killed him. The trial court imposed death penalty for the offence of murder. The Supreme Court converted the death sentence of the accused into imprisonment for life on the ground that accused was a young person aged about 28 years only. Also, there was no evidence to show that he had committed similar offences before and there was also nothing on evidence to show that he is likely to repeat similar crimes in future. The court held that given a chance, he may reform over a period of years.
The intention of the accused is also a determining factor while giving punishment. Also, the age of the victim plays a role while convicting. In the case of Ou v The State of Maharashtra, the accused tried to penetrate inside a 14 months old child. The complete penetration did not happen because the child cried out in pain which was heard by outsiders and also her mother in the adjoining house and they prevented further harm. The intention to commit the act was clearly seen in this case. The court also stated that “the extremely tender age of the child makes the acts of the accused even more deplorable calling for stringent punishment”. The accused was sentenced to life imprisonment by the lower courts. However, the Supreme Court modified the punishment and reduced it to 10 years because the act of the accused was stopped in between and there was no complete penetration.
Consent is wholly immaterial in the determination of offence; however, in some cases it works as a mitigating factor. In the case of Fazal Rab Choudhary, to men were engaged in a consensual relationship. The lower courts sentenced the accused to a rigorous imprisonment of three years. The accused filed a special leave petition in the Supreme Court demanding reduction of sentence. In this case, there was no force used and the act was consensual. The court held that in judging the depravity of the action for determining quantum of sentence, all aspects of the matter including the nature of the offence and whether any force was used by the accused must be taken into account.
In Chittranjan Das v State of Uttar Pradesh, the accused who was a highly qualified individual suffering from mental aberration committed the offence of sodomy. The Supreme Court while confirming the conviction reduced the sentence to a period of two months in view of loss of service as a result of conviction of the appellant.
Thus, while convicting an accused under section 377 of IPC all the factors are taken into account which includes nature of the crime, age of the victim and accused, chances of reformation, consequence of the conviction, consent of the victim.
Proposal for reform
As already stated above, the language of the section 377 is very vague and arbitrary. It is impossible to determine what the order of nature is and what is not. In view of such vagueness, homosexuality has also been treated as against the order of nature. The judgement given by the Delhi High Court in Naz foundation case was a very laudable judgement. I would suggest reforms on the line of Delhi High Court judgement but with a different reasoning. Delhi High Court judgement essentially ruled out that parts of section 377 are unconstitutional as they violate articles 14, 15 and 21 of the constitution. The Delhi High Court never stated that homosexuality is not against the order of nature; it rather stated that section 377 violates the fundamental rights of same sex adults who have consensual relationship. I would suggest that section 377 should be struck down as a whole as the term order of nature is very arbitrary and vague and its meaning is not capable of being made certain. In cases of sexual acts such as paedophilia and bestiality, new provisions should be enacted. The scope of Section 375 should be enlarged so as to include sexual assaults against both boys and girls and the meaning of penetration should be enlarged so as to include forms of penetration other than penile vaginal. In the case of minors, section 377 is ineffective as penetration is required to constitute offence under it. Parliament has however enacted Protection of Children from Sexual Offences Act, 2012 which also covers sexual abuse against children.
Edited by Neerja Gurnani
 PSA Pillai, Criminal Law 714(11th ed. Lexis Nexis. 2012) 714.
 Naz Foundation v. Govt. of NCT, 2010 CrLJ 94.
 Black’s Law Dictionary 750 (9th ed. 2009).
 See Burton Leiser, Homosexuality and the Unnaturalness Argument in SEX, MORALITY AND THE LAW 44 (Gruen & Panichas eds., 1996)
 Khanu v. Emperor, AIR 1925 Sind 286
 KD Gaur , Indian Penal Code 618(3rd ed. Universal Law Publ’g co pvt ltd. 2013).
 Naz Foundation v Government of Delhi & Ors, (2010) Cri LJ 94 (Delhi).
 Suresh Kumar Koushal v. NAZ Foundation, AIR 2014 SC 563.
 Norshiwan Irani v Emperor, 1935 Cr LJ 718.
 Raju v State of Haryana, (1998) CrLJ 2583 (2592).
 Amit v State of UP, (2012) 4 SCC 107.
 Ou v The State of Maharashtra, CRIMINAL APPLICATION NO.2581 OF 2009.
 Fazal Rab Chaudhary v state of Bihar, AIR 1983 Cr LJ 632 (SC).
 KD Gaur , Indian Penal Code 619(3rd ed. Universal Law Publ’g co pvt ltd. 2013).