Unnatural Offences under IPC

Nature and natural things are all around us. These are not man-made, but law is made by man for his own well being and to maintain peace and order in the society. The doubt that arises is about how to distinguish between natural and unnatural? Section 377 of Indian Penal Code, 1860 stands in the middle of the bridge between natural and unnatural offences.
The section 377 of Indian Penal code, 1860 reads as, “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.”
The ambit of Section 377, extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this Section.
Section 377 has been differently interpreted by the judicial authorities. This Section came into existence since the British Raj in India, although today, the western world has legalized homosexuality and by now The United States Of America has even legalized same sex marriages in the year 2015 and also rights of the LGBT (Lesbian, gay, bisexuals and transgender). Section 377 criminalizes homosexual intercourse, which reflects the medieval thought process.
As already stated above, the language of Section 377 is very vague and arbitrary. It is impossible to determine what the order of nature is and what is not. As a result of such vagueness, homosexuality has always been treated as against the order of nature. The judgment given by the Delhi High Court in Naz Foundation Case was a very laudable judgment. The Delhi High Court judgment essentially ruled out that parts of section 377 are unconstitutional as they violate the basic human rights guaranteed under Articles 14, 15 and 21 of the Constitution. However, 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. It is thus in the interest of humanity 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 clear. 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 widened 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. In this context it must be stated that the Parliament has enacted Protection of Children from Sexual Offences Act, 2012 which also covers sexual abuse against children.
Law needs to be somewhere in the middle of flexibility and rigidity so that the purpose and need of the present situation can be fulfilled and justice is served.
This article has been contributed by Shriya Chandankar, First Year, Symbiosis Law School, Hyderabad