Nandini Rao Budhagavi
“My Sexuality is my sexuality, none of your sexuality”, a famous dialogue from a Bollywood movie “Shubh Mangal Zyada Saavdhan”, overtly gives a mirror image of the mentality of the society we live in. This sentence shows the irony with which we accept our society. A contrast as to what our Preamble envisages, or our constitution withholds and the reality with which we live.
Fernando Pessoa once said,” The unnatural and the strange have a perfume of their own.” The Queer-eyed have a story of their own and the world that they view is much more encompassing and embracing than the sore eyes, we behold.
The society goes by certain norms and beliefs and designates some orders that are against the nature. These can be termed as social constraints that the society imposes in order to maintain the equilibrium of the mankind. Unnatural offences are one of those that the society inhibits and constitutions backs-up. Unnatural offences have widened with the passage of time and brought into its purview sodomy, buggery, bestiality, tribadism, sadism, masochism.
India has come a long way in giving a much-needed light in the matter of unnatural offences. The fight for the queer-right and societal identity has seen its end and it has struck down one of its unnatural offence in the age of becoming.
The Indian Constitution has termed certain offences as unnatural offences. The offences provided in Section 377 of The Indian Penal Codes are called as Unnatural Offences. Section 377 Unnatural Offences-“ Whoever voluntarily has carnal intercourse against the order of the nature with any man, women, 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 carnal intercourse necessary to the offence described in this section.
The offence mentioned in Section 377 have an influence of English laws like Sodomy, Bestiality, since the Indian Penal Code was drafted under the craftsmanship of Lord Thomas Babington Macaulay.
The Judiciary tried to define and brush-off all the ambiguities related to what constitutes penetration and carnal intercourse. In the case of State of Kerala v. Kundumkara Govindan (1969) Cr LJ 818 (Ker), the Kerala High Court, said that the intercourse here is meant to be sexual and not social one. Therefore, penetration was considered as “insertion in any place, fir or thrust”. Holding this the court decided that even the act of committing intercourse between the thighs is also known as carnal intercourse against the order of nature and held liable under section 377.
Essentials to Unnatural Offences under Section 377 are,
- There must be “voluntary carnal intercourse.”
- It must be “against the order of the nature- it may be with any man or woman or animal.”
- There must be a presence of “penetration.”
These are the essential cumulative conditions that when complied with, constitutes the offence under Section 377 of Indian Penal Code.
In the case of State of Maharashtra v. Shankar Krisanrao Khade 2009 Cr LJ 73 (Bom), though the victim was raped and subjected to carnal intercourse before she was murdered by the accused, the court did not attract or rejected to hold the accused convicted under section 377 by making accused liable of sodomy.
Therefore, only a slightest penetration as mentioned in explanation coupled with the act being against the order of the nature is sufficient to make the person liable under this section.
Against the order of the nature, here, denoted the act against the societal norms and values. But sometimes what is natural to particular societal culture may be unnatural for another community or social group. In 1884, a transgender person in Moradabad district of northern India was arrested by police after the person was found crossdressing and singing with a group of women. Given the name ‘Khairati’ in the case files, the person became one of the first to be prosecuted under the infamous Section 377 of the colonial-era Indian Penal Code (IPC), which criminalized “carnal intercourse against the order of nature” – an umbrella term for non-procreative sexual acts. Queen Empress v Khairati was initiated by the police without a complainant. They appeared to have been monitoring the person who was suspected of being a eunuch, leading the presiding judge to commend “the desire of the authorities at Moradabad to check these disgusting practices.”
There are four connotations in the term gender expression. They are sexual desire, sexual identity, sexual orientation and sexual behavior. A person cannot have a command over these elements of a person’s sexual construct. So, therefore, putting a constraint in the minds of the people in terms of law legalizing certain elements and criminalizing certain elements that are natural to a particular part of the society. When the term society is used here, it states that the people belonging to that section are very much part of the society and when society is built upon the interdependence among each other, it becomes rather obligatory for us to provide the same belongingness and recognition with which the other part of the society is remaining harmoniously.
Therefore, a quantum jumps rather than incremental step has been made by the Indian judiciary in the 21st century. A petition, challenging the validity of the provision mentioned under the Section 377 was initiated. It was once argued that allowing homosexuality would cause AIDS. But then it was concluded the opposite. Therefore, such allegations made section 377 creating vulnerable class of people who were subjected to victimization and criminalization. A person’s sexual orientation is beyond the hands of control by mankind, therefore, creating a dominant position and commanding activities in this sphere would lead to subjugation, which is against Article 14, 15, 19, and 21. Right to equality under Article 14 also includes equality towards homosexual people, under article 15, the term ‘sex’ also includes sexual orientation of a person and right to move freely or right to association with subject to the homosexual acts under Article 19. Such restrictions which infamously brings them in the forefront of discussion also violates a person’s right to privacy and right to life and dignity.
But then again certain people claim that if a valid law becomes irrational after a given period of time, them the people will lose faith in the judiciary system of the country whereby judgements are made with laws that are subject to alteration in the future. And some also argued that sexual activities which are ordinary and unnatural were intelligible under Article 14 which gives provision for intelligible differentia and thus, not violative. But a country matures constantly because of the people’s constant adaption to modern outlook. In such circumstance, where the need is to be at par with the other countries, we cannot rely on the laws which were drafted some decades ago. That does not mean that our constitution is redundant, it only means that certain modifications in our constitution can make it stronger and much more trustworthy and reliable. On 15th April 2014, in the case of National Legal Services Authority v. Union of India declared that transgender community to be considered as a third gender and gave them legal identification where it stated that homosexuality is nit a disease but uniqueness. It also granted them all the fundamental rights which they were prior deprived of. Therefore, on 6th September 2018, Supreme court gave a verdict in the case of Navtej Singh Johar v. Union of India, ruling that that part of Section 377 is unconstitutional that criminalizes consensual sex amongst adults (LGBTQ) and declared it as unconstitutional, unreasonable, irrational and arbitrary. But the other provisions under Section 377 would continue to be constitutional in case of non-sexual sex among adults, consensual sex and non-consensual sex among minors and bestiality.
Laws that are put into force are best critiqued when its benefits are savored by the people. In many cases, the sentences are not usually heavy. The discretion of the judge has somewhat played a opposite role to what it was meant to be. In Charanjit Singh v. State, a truck driver twice committed sodomy on a boy in his truck, even then only a sentence of one-year imprisonment and a fine of Rs. 500 were imposed on the accused. Certain times the pecuniary damages are much more than what the compensation is awarded for. The agony may be greater since the victim experiences horrific psychological trauma.
It is said that homosexuality is natural, but it is the homophobia, that is unnatural. But that does not rule out that certain section of the society takes an undue advantage of the situation. Power and authority have peculiar interplay that most people do not understand. People mistake it for dominance and subservience of the others. But such attitude can be cruel sometimes. A heinous incident took place where a 40-year old man rapes a female dog in Thane, Maharashtra. Police registered an offence under IPC Section 377 (unnatural sex) and Section 11(a) of Prevention of Cruelty to Animals Act, 1960. A similar incident took place in Bhopal Madhya Pradesh where a 55-year old man was arrested for allegedly sodomizing a cow. He was also booked for an offence committed under Section 377.
Unnatural offences were been governed under the heterosexuality code, till 1701. Alternate sexuality is not a recent phenomenon. Before Britishers brought in this concept, Indian ethos did not criminalize any alternate sexuality. But the Manu smriti bears a testimony to this concept. It stated that If a virgin violates another virgin, she should be fined 200, pay 3 times the bride price and receive ten lashes. When a woman violates a virgin, her head ought to be shave immediately and alternatively two of her fingers should be cut-off and she should be paraded on a donkey. This signifies that people were educated enough to understand this paradox but not broad enough to embrace it. In the 21st century the outwardness and openness is giving them strength to voicing their opinions. And it takes strong political dynamics to mobilize communities to render individual freedom as envisaged by our Constitution.
 Indian Penal Code, 1860, Section 377
 State of Kerala v. Kundumkara Govindan (1969) Cr LJ 818 (Ker)