NAME- MEHAK SHARMA

CLASS- BA.LLB 2ND YEAR

ROLL NO- DY22LAWU0ALL012
SUBJECT- INDIAN PENAL CODE-2
PROFFESOR- ADV. KEVIN TAURO
 IN DEPTH ANALYSIS OF SECTION 377 OF INDIAN PENAL
CODE

OBJECTIVES
1] To explore the concept of unnatural sexual offences, its historical roots, legal implications.
2] To analyze relevant case laws that brought change in the decriminalization of Section 377
of IPC.
3] To check its present relevance in Bhartiya Nyaya Sanhita (BNS)

RESEARCH QUESTION
How has the decriminalization of Section 377 of the Indian Penal Code affected attitudes,
perceptions, and legal frameworks around sexual orientation and gender identity? What are
the long-term social, legal, and psychological ramifications for LGBTQ people and Indian
society?

RESEARCH METHODOLOGY
The research approach used in this research is mainly based on qualitative analysis of various
aspects of Unnatural sexual offences and the examination of unnatural sexual offences from
the point of view of history, legal aspects, present scenarios and relevant case studies that
brought about a change in the notion of section 377 of Indian Penal Code. Various articles,
journals, gazette, and research studies have been used to collect liable information regarding
the evolution of Section 377 of Indian Penal Code and other aspects of the section like
homosexuality and the LGBTQ community.

LITERATURE REVIEW

INTRODUCTION
Unnatural sexual offences find its mentioning in the section 377 of the Indian Penal Code
which defines unnatural sexual offence 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 term “unnatural sexual offences” often describes the range of sexual activities that have
been historically considered a taboo or criminalized based on the prevailing societal, religious
or legal norms. The type of conditions considered unnatural may vary across different
cultural and legal systems, but they generally include acts that deviate from traditional or
heteronormative understandings of sexuality. Following are the examples of unnatural sexual
offences-
 a. Sodomy- It is referred to anal or oral sex between individuals, between people of the
same sex.
b. Bestiality- It is referred to as sexual activity between human and an animal. It is
referred to as inhumane and unethical.
c. Incest- It is defined as sexual relations between close family members, for e.g.-
siblings, parents and children or other blood relatives. Incest is not an offence in
India.
d. Necrophilia- It involves sexual attraction towards corpses or engaging in sexual
activities with a corpse.
e. Pedophilia- It involves sexual acts with minor regardless of the consent. 1

HISTORY

The section 377 of the Indian Penal Code was first drafted by Thomas Macaulay around 1838
and was brought in to effect in 1860 in the light of First War of Independence (1857). The
process of drafting of the act emerged from the Buggery Act of 1533 which was enacted
under the rule of King Henry VIII. This law defined buggery as an unnatural sexual act
against the order of God and man. It thus criminalised sodomy, bestiality and in broader sense
the notion of homosexuality.
Furthermore, the Buggery Act of 1533 was repealed and a new act of Offences against the
Person Act of 1861 was enacted which broadened the definition of unnatural sexual offences
and also allowed for the prosecution of not only rapists, but also homosexuals. This act can
be considered as the inspiration for the section of 377 of the Indian Penal Code.

The first instance of section 377 being challenged in India was the result of Naz Foundation
(India) Trust, a non-governmental organization who approached the Delhi High Court by
filing a lawsuit to allow homosexual relations between consenting adults. Their main
argument revolved around the application of the section to only non-consensual penile non-
vaginal sex and penile non-vaginal sex involving minors. This case was however dismissed in
2003, where the HC stated that the Naz Foundation had no standing in the matter. The
foundation further appealed the dismissal in the Supreme Court which led to the historic
judgement in 2009 by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, which
decriminalized consensual sexual acts between adults.

The constitutionality of the verdict was challenged as it is the Parliament that holds the power
to change and amend laws and so the verdict by High Court of Delhi was overturned. The
Judges then turned over to the Parliamentarians to look over the matter and make necessary
amends.

Sashi Tharoor’s private Member Bill of 2014-

When the said proposal was being put forth in the parliament, no member was interested to
take his/ her stand on the matter that is when Shashi Tharoor vis social media raised
awareness, signed petitions regarding the matter and finally introduced a Private Bill. This
bill aimed at allowing the adults to have consensual non- vaginal sexual intercourse, thus
effectively decriminalising homosexuality. However, this bill was rejected without it being
introduced.

1
Present Stance-
A five- judge Bench unanimously dismissed section 377 of the Indian Penal Code on 6 th
September 2018 to the extent that it criminalized same sex relationships between consenting
adults and it became permissible for the LGBT people to engage in consensual sexual
intercourse. It also upheld the provisions that criminalise animals’ non-consensual acts or
sexual acts. This judgement was the result of Navtej Singh Johar & others v/s Union of India
which struck down the criminalisation of consensual intercourse between same sex couples
by the Supreme Court. 2

CASE ANALYIS

Navtej Singh Johar v/s Union of India is considered to be a landmark case in the Indian legal
history. The main argument of the suit revolved around the constitutionality of section 377 of
IPC with regards to consensual acts between same sex couples.

Key arguments-
1] the petitioners pointed out the violation of fundamental rights given to citizens of India by
the constitution of India that is present in the society because of unconstitutionality of section
377 of IPC.
2] They highlighted the presence of stigma, discrimination and harassment faced by the
people of the LGBTQ community.
3] The petitioners highlighted the international notions of acceptance of homosexuality and
same sex relationships and how the world has aimed to decriminalise the idea of same sex
relations.

Supreme Court Decision-

1] The SC held that consensual acts between same sex couples is legal and it struck down the
relevant portions of section 377 of IPC. The SC agreed that the contents of section 377 of IPC
is unconstitutional and it was ultra vires to the Articles 14, 15,19 and 21 of the constitution of
India.
2] The SC recognised the rights of the LGBTQ community and granted them equality and
non-discrimination under the constitution while affirming their equal citizenship and right to
live with dignity.
3] The SC highlighted the importance of constitutional morality and the need to protect the
rights of the marginalized community of the society that also includes the people from
LGBTQ community.

Impact on the society-

The Navtej Singh Johar judgement made a historic impact on the society while highlighting
the struggles and difficulties faced by the LGBTQ community in India. It not only
decriminalised and accepted the concept of same sex relationships between consenting adults
but also praised the inclusion of LGBTQ people their constitutional rights and dignity. It led
to fostering a strong base for the inclusivity, acceptance and legal recognition of the LGBTQ
community in India.

2
 WHETHER 377 IS INCLUDED IN THE BHARTIYA NYAY SANHITA?

The mentioning of section 377 of IPC cannot be found in the Bhartiya Nyaya Sanhita,
however, if a person without the consent tries to gratify the unnatural lust, the aggrieved
person has complete right to cause the death if the assailant or cause grievous harm to the
assailant. This provision is mentioned in Section 38(d) of the Bhartiya Nyaya Sanhita.

FINDINGS
The legal journey of Section 377 of the IPC casts an image over the crossing of historical,
societal and legal dynamics regarding sexuality and personal autonomy. It represents how the
section overtime has become a symbol of oppression and discrimination against the people of
LGBTQ community in India. The legal battle of Navtej Singh Johar has played a crucial role
in establishing the fundamental rights of the people of LGBTQ community.

The repealing of Section 377 will always represent India’s successful journey in accepting the
LGBTQ community where it achieved greater respect for diversity, individual freedoms and
human rights. It reflects the notion of being more progressive and inclusive legal framework
that rogers the inherent dignity and worth of every person irrespective of their sexual
orientation or gender.