This article has been written by Ms. Stuti Chaudhary, a 2nd-year B.A.LL.B student from Lloyd Law College, Greater Noida.
INTRODUCTION:-
“Unnatural offenses” typically refers to sexual acts that are deemed to be unnatural or non-procreative, such as same-sex sexual activity or bestiality.
The criminalization of “unnatural offenses” has a long history, with many societies and legal systems punishing individuals who engage in such behavior. However, attitudes towards same-sex sexual activity have shifted significantly in many parts of the world in recent decades, and many countries have decriminalized homosexuality.
It’s important to note that the term “unnatural” can be problematic, as it suggests that some forms of sexual activity are inherently wrong or immoral. In reality, people engage in a wide range of sexual behaviors, and what is considered natural or acceptable varies across cultures and individuals. What is most important is that all sexual activity is consensual and respectful.
UNNATURAL OFFENSES ACCORDING TO THE IPC:-
In the Indian Penal Code (IPC), Section 377 deals with “unnatural offenses”. It criminalized sexual acts “against the order of nature”, including same-sex sexual activity and bestiality.
However, in a landmark judgment in September 2018, the Indian Supreme Court declared that Section 377 was unconstitutional as it violated the fundamental rights of LGBTQ+ individuals. The court held that sexual orientation is a natural aspect of human personality and that discrimination on the basis of sexual orientation is a violation of fundamental rights.
Therefore, as of now, “unnatural offenses” are not criminalized in India under the Section 377 of the IPC.
SECTION 377 OF THE IPC:-
Section 377 of the Indian Penal Code (IPC) criminalized sexual acts “against the order of nature”, including same-sex sexual activity and bestiality. The text of Section 377, as it stood before its repeal, was as follows:
“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.”
Section 377 was highly controversial and had been widely criticized as discriminatory against LGBTQ+ individuals. In September 2018, the Indian Supreme Court declared Section 377 unconstitutional as it violated the fundamental rights of LGBTQ+ individuals. The court held that sexual orientation is a natural aspect of human personality and that discrimination on the basis of sexual orientation is a violation of fundamental rights. Following this judgment, Section 377 was effectively repealed and is no longer in force.
HISTORY OF SECTION 377:-
Section 377 of the Indian Penal Code was introduced in 1861 during British colonial rule in India. The section criminalized “carnal intercourse against the order of nature” and applied to any sexual acts deemed to be “unnatural,” including same-sex sexual activity. The law carried a maximum penalty of life imprisonment and was widely used to discriminate against LGBTQ+ individuals in India.
In the years following independence in 1947, attempts were made to repeal Section 377, but these efforts were largely unsuccessful due to societal and political attitudes towards homosexuality and the influence of conservative religious groups.
In 2001, the Naz Foundation, an LGBTQ+ advocacy group, filed a petition challenging the constitutionality of Section 377 in the Delhi High Court. The case was dismissed in 2004, but the Naz Foundation appealed to the Supreme Court of India, which agreed to hear the case in 2012.
In 2013, the Supreme Court upheld the constitutionality of Section 377, arguing that it was necessary to uphold traditional cultural and religious values. The decision sparked widespread protests and condemnation from human rights groups and LGBTQ+ advocates.
However, in 2018, the Supreme Court reversed its earlier decision and declared Section 377 unconstitutional, stating that it violated the fundamental rights of LGBTQ+ individuals. The decision was widely celebrated as a landmark victory for LGBTQ+ rights in India and marked an important shift in societal attitudes towards non-heterosexual and gender non-conforming identities.
ESSENTIAL ELEMENTS FOR UNNATURAL OFFENSES:-
The term “unnatural offenses” typically refers to sexual acts that are deemed to be unnatural or non-procreative, such as same-sex sexual activity or bestiality. In legal contexts, the term may also encompass other sexual acts that are considered non-normative or taboo, such as incestuous acts or acts involving minors.
To establish an “unnatural offense,” the prosecution must typically prove several elements, including:
Voluntariness: The sexual act must have been undertaken voluntarily and without coercion.
Non-consensual: The sexual act must have been undertaken without the consent of all parties involved.
Against the order of nature: The sexual act must be considered unnatural or non-procreative according to prevailing cultural or legal norms.
Criminal intent: The defendant must have acted with criminal intent, meaning that they intended to commit the offense and understood that their actions were unlawful.
It’s important to note that the concept of “unnatural offenses” has been widely criticized as being based on outdated and discriminatory views of sexuality, and many people and organizations advocate for the decriminalization of consensual sexual behavior between adults, regardless of their gender or sexual orientation.
TABOO AGAINST LGBTQ+ PEOPLE IN INDIA:-
LGBTQ+ individuals in India have long faced significant social stigma and discrimination, largely due to prevailing cultural and religious attitudes that view non-heterosexual and gender non-conforming identities as taboo or deviant. Some of the factors that contribute to the taboo against LGBTQ+ people in India include:
Traditional cultural norms: Many traditional cultural norms in India uphold heterosexual marriage and gender roles, and view homosexuality and gender non-conformity as abnormal or immoral.
Religious beliefs: Many religious communities in India, including conservative interpretations of Hinduism, Islam, and Christianity, view homosexuality as sinful or immoral.
Legal discrimination: Until the repeal of Section 377 of the Indian Penal Code in 2018, consensual same-sex sexual activity was illegal in India and punishable by imprisonment. This created a legal environment that stigmatized and discriminated against LGBTQ+ individuals.
Lack of representation: LGBTQ+ individuals are often excluded from mainstream cultural and political discourse in India, leading to a lack of representation and visibility.
Misinformation and stereotypes: Negative stereotypes and misinformation about LGBTQ+ individuals are still prevalent in India, including beliefs that homosexuality is a mental illness or that LGBTQ+ individuals are inherently promiscuous or immoral.
Despite these challenges, there has been a growing movement for LGBTQ+ rights and visibility in India in recent years, with many individuals and organizations working to challenge these cultural and legal taboos and promote acceptance and equality for LGBTQ+ people.
CHALLENGES FACED BY THE LGBTQ+ PEOPLE:-
LGBTQ+ individuals face various challenges in different aspects of their lives due to discrimination and prejudice based on their sexual orientation or gender identity. Some of the key challenges faced by LGBTQ+ people include:
Social stigma and discrimination: LGBTQ+ individuals may experience discrimination, harassment, or exclusion from society and their own families. This can lead to social isolation, mental health issues, and a lack of access to resources and support.
Legal discrimination: In many countries, including India, LGBTQ+ individuals face legal discrimination in areas such as marriage, adoption, and inheritance rights.
Lack of healthcare: LGBTQ+ individuals may face barriers in accessing healthcare due to lack of awareness among healthcare providers, discrimination, and prejudice. This can lead to a lack of appropriate healthcare services and increased health risks.
Employment discrimination: LGBTQ+ individuals may experience employment discrimination, including being denied employment opportunities or being harassed or fired because of their sexual orientation or gender identity.
Physical violence and hate crimes: LGBTQ+ individuals may be subjected to physical violence, hate crimes, and other forms of harassment due to their sexual orientation or gender identity.
Lack of representation and visibility: LGBTQ+ individuals are often underrepresented in mainstream media and may have limited access to role models or positive representation.
It is important to recognize and address these challenges faced by LGBTQ+ individuals in order to promote equality and create a more inclusive society.
IMPLICATIONS OF SECTION 377:-
Section 377 of the Indian Penal Code, which criminalized consensual same-sex sexual activity, had wide-ranging implications for LGBTQ+ individuals in India. Some of the key implications of the law included:
Discrimination and harassment: The existence of Section 377 contributed to widespread discrimination and harassment of LGBTQ+ individuals in India. Police often used the law as a pretext to harass and extort money from individuals suspected of engaging in same-sex sexual activity.
Lack of legal protections: Because of the criminalization of same-sex sexual activity under Section 377, LGBTQ+ individuals faced significant legal barriers to accessing basic rights and protections, such as healthcare, employment, and housing.
Stigma and marginalization: The existence of Section 377 reinforced stigma and marginalization of LGBTQ+ individuals in Indian society. Many LGBTQ+ people faced discrimination and exclusion from their families, communities, and workplaces, and were unable to live openly and authentically.
Violence and persecution: In extreme cases, the criminalization of same-sex sexual activity under Section 377 led to violence and persecution of LGBTQ+ individuals, including mob attacks, vigilante justice, and forced “conversion therapies.”
The repeal of Section 377 in 2018 has marked an important shift in societal attitudes towards non-heterosexual and gender non-conforming identities in India. However, significant challenges remain in terms of addressing discrimination and promoting equality for LGBTQ+ individuals in all areas of life.
LANDMARK CASES RELATING TO UNNATURAL OFFENSES IN INDIA:-
Here are some landmark cases related to unnatural offenses in India:
Naz Foundation v. Government of NCT of Delhi (2009):
This case challenged the constitutionality of Section 377 of the Indian Penal Code and argued that it violated the fundamental rights of LGBTQ+ individuals. The Delhi High Court ruled in favor of the Naz Foundation, holding that Section 377 was discriminatory and violated the constitutional guarantees of equality, non-discrimination, and privacy.
Suresh Kumar Koushal v. Naz Foundation (2013):
This case was a subsequent appeal to the Naz Foundation case, in which the Supreme Court of India reversed the Delhi High Court’s ruling and upheld the constitutionality of Section 377. The decision was widely criticized as regressive and discriminatory.
Navtej Singh Johar v. Union of India (2018):
This landmark case challenged the constitutionality of Section 377 and argued that it violated the fundamental rights of LGBTQ+ individuals. The Supreme Court of India overturned its previous decision in the Koushal case and declared Section 377 unconstitutional, stating that it violated the fundamental rights to privacy, equality, and non-discrimination.
UNNATURAL OFFENSES AND CRUELTY:-
Section 377 of the Indian Penal Code dealt specifically with “unnatural offenses” and did not address cruelty as a separate offense. However, it is worth noting that the criminalization of consensual same-sex sexual activity under Section 377 contributed to widespread discrimination, harassment, and violence against LGBTQ+ individuals, which could be considered acts of cruelty.
For example, LGBTQ+ individuals in India have reported being subjected to physical violence, harassment, and discrimination in various settings, including in their homes, at school, and in the workplace. In some cases, this violence has even been perpetrated by law enforcement officials, who have used Section 377 as a pretext for targeting LGBTQ+ individuals.
In recent years, there have been efforts to address the issue of cruelty towards LGBTQ+ individuals in India. For example, in 2019, the Transgender Persons (Protection of Rights) Act was passed, which aims to protect the rights of transgender individuals and prevent discrimination and violence against them. However, the law has been criticized by some LGBTQ+ advocates for failing to address the broader issues of discrimination and violence faced by the community as a whole.
Overall, while the repeal of Section 377 was an important step forward in promoting equality and human rights for LGBTQ+ individuals in India, there is still much work to be done in addressing the root causes of discrimination and violence and ensuring that all individuals are able to live their lives free from fear and harm.
CRUELTY AGAINST LGBTQ+ PEOPLE:-
Cruelty towards LGBTQ+ people is a significant issue in many parts of the world, including in India. As I mentioned earlier, the criminalization of same-sex sexual activity under Section 377 of the Indian Penal Code contributed to widespread discrimination, harassment, and violence against LGBTQ+ individuals. LGBTQ+ individuals in India have reported being subjected to physical violence, verbal abuse, and other forms of mistreatment in various settings, including in their homes, at school, in the workplace, and in public spaces.
Transgender individuals are particularly vulnerable to cruelty and violence. In addition to facing discrimination and violence based on their sexual orientation or gender identity, they are often subjected to systemic marginalization and stigmatization. Transgender individuals in India have reported being denied employment, education, healthcare, and other basic rights, and have been subjected to police brutality, forced sex work, and other forms of exploitation.
Efforts have been made to address the issue of cruelty towards LGBTQ+ individuals in India. For example, the Indian government has launched various initiatives aimed at promoting LGBTQ+ rights and improving the well-being of LGBTQ+ individuals. Non-governmental organizations and activist groups have also been working to raise awareness of the issues faced by LGBTQ+ individuals and advocating for policy and legal reforms to promote their rights and well-being.
However, more needs to be done to address the underlying factors contributing to cruelty towards LGBTQ+ individuals in India, including discrimination, prejudice, and lack of awareness and understanding. This requires not only legal and policy reforms, but also changes in societal attitudes and norms towards LGBTQ+ individuals and their rights.
CRUELTY IN REGARD TO SECTION 377:-
The criminalization of consensual same-sex sexual activity under Section 377 of the Indian Penal Code contributed to widespread discrimination, harassment, and violence against LGBTQ+ individuals, which could be considered acts of cruelty. This law was used as a pretext for targeting LGBTQ+ individuals, leading to widespread stigmatization and marginalization.
LGBTQ+ individuals in India have reported being subjected to physical violence, verbal abuse, and other forms of mistreatment in various settings, including in their homes, at school, in the workplace, and in public spaces. Police brutality, forced sex work, and other forms of exploitation were also reported in some cases. Moreover, the existence of such a discriminatory law created a culture of fear and self-censorship, which restricted the free expression of sexual and gender identities.
The legal recognition of the rights of LGBTQ+ individuals, including the decriminalization of same-sex sexual activity under Section 377, has helped to address some of these issues. However, discrimination, harassment, and violence against LGBTQ+ individuals continue to exist in various forms in India and around the world. It is important to work towards the elimination of such discriminatory attitudes and behaviors and to promote the rights and well-being of all individuals, regardless of their sexual orientation or gender identity.
LANDMARK CASES OF CRUELTY AND UNNATURAL OFFENSES:-
Here are some landmark cases related to unnatural offenses and cruelty in India:
Independent Thought v. Union of India (2017):
This case challenged the exception to Section 375 of the Indian Penal Code, which permitted sexual intercourse with a wife who is above 15 years of age. The Supreme Court of India held that the exception was unconstitutional and violated the fundamental rights of women and children.
Shafin Jahan v. Asokan K.M. & Ors. (2018):
This case involved a petition challenging the annulment of a marriage between a Muslim woman and a Hindu man on the grounds of “love jihad.” The Supreme Court of India upheld the right of individuals to choose their own partners and ruled that the concept of “love jihad” had no legal basis.
State of Haryana v. Bhajan Lal (1992):
This case is a landmark judgment on the issue of cruelty in marital relationships. The Supreme Court of India held that cruelty could be mental or physical, and that acts of cruelty could include a wide range of behaviors, such as harassment, insults, and emotional abuse.
CONCLUSION:-
In conclusion, LGBTQ+ individuals continue to face various challenges and forms of discrimination based on their sexual orientation or gender identity. The criminalization of consensual same-sex sexual activity under Section 377 of the Indian Penal Code was a major obstacle to the protection of the rights of LGBTQ+ individuals in India. However, recent legal developments have been positive steps towards promoting equality and inclusion. It is important to continue to work towards the elimination of discrimination and violence against LGBTQ+ individuals and to promote their rights and well-being in all aspects of society. By creating more inclusive and accepting environments, we can ensure that LGBTQ+ individuals are able to live their lives with dignity and respect.
REFERENCES:-
The Indian Penal Code, 1860, available at https://www.indiacode.nic.in/handle/123456789/1978?view_type=search&sam_handle=123456789/1362
Naz Foundation v. Government of NCT of Delhi, (2009) 111 DRJ 1, available at https://indiankanoon.org/doc/294843/
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, available at https://indiankanoon.org/doc/147655443/
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, available at https://indiankanoon.org/doc/111639768/
“India’s top court legalizes gay sex in landmark ruling,” BBC News, 6 September 2018, available at https://www.bbc.com/news/world-asia-india-45429664
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Independent Thought v. Union of India, (2017) 10 SCC 800.
Shafin Jahan v. Asokan K.M. & Ors, (2018) 16 SCC 368.
State of Haryana v. Bhajan Lal, (1992) Supp (1) SCC 335.
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The Quint. (2021). Pride Month: Stories of Discrimination and Survival from the LGBTQ Community. Retrieved from https://www.thequint.com/news/india/pride-month-stories-of-discrimination-and-survival-from-the-lgbtq-community
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