Criminal Law (Indian Penal Code) Chapter -16, Sec. 377 Unnatural Offence
Unnatural Offence Sec. 377
“W/e voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with
Punishment -[imprisonment for life]Subs. By Act 26 of 1955 Sec 117 and Sch, for “ transportation 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.—The Explanation states thatPenetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section
Cognizable, Nonbailable, Non compoundable and trial by Ist class magistrate
This Section was intended to punish the offence of sodomy, buggery and bestiality. the offence purported to consist in a carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural manner with a woman, or by a man or woman in any manner with an animal.There are two main ingredients in this section Carnal intercourse and Against the order of nature
Constitutionality of section 377
‘Naz Foundation v Government of NCT of Delhi, 2010 CrLJ 94 ( Del).
He Delhi High Court in a landmark judgement declared Section 377 IPC 1860 unconstitutional in so far It criminalized consensual sexual acts of adults in private as violative of articles 21, 14 and 15 of the constitution.[i]
“In Suresh Kumar Kaushal v Naz Foundation,
The supreme court overruled the Delhi High Court judgement holding that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that section 377 suffers from the vice of arbitrariness and irrational classification what Section 377 does is merely define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the CrPC, 1973 and other statutes of the same family, the person is found guilty. Therefore Section 377, IPC 1860 was held to be not ultra vires Article 14 and 15 of the Constitution. It was also observed by the supreme court that the court merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of section 377 IPC, 1860 and found that the said section did not suffer from any constitutional infirmity. Not withstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC, 1860 from the statute book or amend the same.”[ii]
“In Navtej Singh Johar vs Union of India,
A constitution bench of the supreme court overruled Suresh Kumar Kaushal and held that consensual carnal intercourse among adults in private space, does not in any way harm public decency or morality. therefore, Section 377 in its present form violates article 19 (1) (a). The court held that so far as Section 377 Penalises any consensual sexual relationship between two adults, be it homosexuals (man and man), heterosexuals (man and woman) or lesbians (woman and woman), cannot be regarded as constitutional.However, if anyone engages in any kind of sexual activity with animal, said aspect of section 377 is Constitutional and its shall remain a penal offence. The court held that any act of description covered under Section 377 done between two individuals without consent of any one of them would invite panel liability.”[iii]
[i] Naz Foundation v Government of NCT of Delhi 2010 CrLJ 94 ( Del).
[ii] In Suresh Kumar Kaushal v Naz Foundation, Air 2014 SC 563
[iii] In Navtej Singh Johar vs Union of India,AIR 2018 SC 4321.
Ratanlal Dheerajlal, Indial Penal Code, Lexis Nexis 36th edition
Dr. J.N. Pande, Constitutional Law of India Central Law Agency 2020
Bhattacharya, Indian Penal Code ,CLA