“A final answer to the question ‘what is a crime?’, is impossible, because law is a living, changing thing, which may at one time be uniform, and at another time give much room for judicial discretion, which may at one time be more specific in its prescription and at another time much more general.”- Roscoe Pound
According to the Yogyakarta Principles, the term sexual orientation refers to each person’s capacity for profound emotional, affectional and sexual attraction to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender. In order to understand the term ‘sexual orientation’ holistically, it is important to understand the following terms:
i. Homosexual: People of either gender who are attracted, sexually, emotionally and in relationships, to persons of the same sex.
ii. Bisexual: Women who are attracted to both sexes; men who are attracted to both sexes.
iii. Lesbian: Women who are attracted to women.
iv. Gay: Men who are attracted to men, although this term is sometimes also used generically for all same-sex attracted persons.
v. Gender Identity: A phenomenon distinct from sexual orientation which refers to whether a person identifies as male or female. This identity may exist whether there is ‘conformity or non-conformity’ between their physical or biological or birth sex and their psychological sex and the way they express it through physical characteristics, appearance and conduct.
vi. Intersex: Persons who are born with a chromosomal pattern or physical characteristics that do not clearly fall on one side or the other of a binary male-female line.
vii. LGTB: Lesbian, Gay, Bisexual and Transsexual.
viii. MSM: Men who have sex with men. It refers solely to physical, sexual activity by men with men. This expression is used on the basis that in some countries (including India) some men may engage in sexual acts with their own sex although not identifying as homosexual or even accepting a romantic or relationship emotional.
Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality, and, intimacy between consenting adults of the same-sex is beyond the legitimate interests of the State. Moreover, sodomy laws violate equality by targeting a segment of the population for their ‘sexual orientation’. In 1996, South Africa became the first country in the world to constitutionally prohibit discrimination based on sexual orientation. According to International Lesbian, Gay, Bisexual, Trans and Intersex Association, 74 countries, including India, criminalized same-sex sexual conduct, as of 2017.
“377.Unnatural offences- 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.
Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
The essential ingredient required to constitute an offence under Section 377 of the IPC is ‘carnal intercourse against the order of nature’, which is punishable with life imprisonment, or imprisonment of either description up to ten years. Section 377 of the IPC applies irrespective of gender, age, or consent. The expression ‘carnal intercourse’ used in Section 377 of the IPC is distinct from ‘sexual intercourse’ which appears in Section 375 of the IPC. The phrase ‘carnal intercourse against the order of nature’ is not defined by Section 377 of the IPC. Courts have interpreted the term ‘carnal’ to refer to acts which fall outside penile-vaginal intercourse, and those which are not for the purposes of procreation.
While Section 377 of the IPC has been used to prosecute non-consensual sexual acts, it has also been used to prosecute consensual sexual acts. Section 377 of the IPC uses the phrase ‘carnal intercourse against the order of nature’. The determination of order of nature is not a constant phenomenon as social morality changes from age to age, but, the morality that public perceives, the Constitution may not conceive of. Section 377 of the IPC despite being a pre-constitutional law, was retained post the Constitution coming into effect by virtue of Article 372 of the Constitution. That the presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights is prima facie shown, then such presumption has no role.
There is no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual. In the matter of: Khanu V/s Emperor, AIR 1925 Sind 286, it was observed that: (1) ‘Coitus Per OS’ is mouth contact with male genitals; (2) The natural object of coitus is that there should be the possibility of conception of human beings, which in the case of ‘Coitus Per OS’ is impossible; (3) When the male organ is inserted between the thighs kept together and tight, there is ‘penetration’ to constitute unnatural offence; committing intercourse between the thighs of another is carnal intercourse against the order of nature; and, (4) ‘Coitus Per OS’ falls within the purview of Section 377 of the IPC and hence, is an offence.
In the matter of: Suresh Koushal & Anr V/s Naz Foundation & Ors, (2014) 1 SCC 1, it was observed that:
“…no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature” …the acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and the circumstances in which it is executed…”
In Suresh Koushal & Anr (Supra) the Hon’ble Supreme Court of India stated that there are two classes of persons, those who engage in sexual intercourse in the ordinary course, and those who don’t. The Hon’ble Supreme Court in Suresh Koushal & Anr (Supra) failed to deliberate not only on what is ‘sexual intercourse in the ordinary course’ but also on what basis only the ‘penile-vaginal heterosexual sex’ can be termed as sexual intercourse in ordinary course.
Section 375 of the IPC categorically states that, a man is said to commit ‘rape’ if he- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person. Exception 2 to Section 375 of the IPC states that, sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. Thus, ‘Coitus Per OS’ between husband and wife falls outside the periphery of Section 375 of the IPC.
Section 377 of the IPC, unlike Section 375 of the IPC is a gender-neutral provision as it uses the word ‘whoever’. The word ‘carnal’ means of the body, relating to the body, fleshy or sexual. Sexual intercourse means a contact between a male and a female’s organ. The term ‘against the order of nature’ used in Section 377 of the IPC has neither been defined in Section 377 of the IPC nor in any other provision of the IPC. The foundation on which Section 377 of the IPC makes carnal intercourse an offence is the precept that such carnal intercourse is against the order of nature. The most common argument against homosexuality and criminalization of carnal intercourse even between consenting adults of opposite sex is that traditionally, the essential purpose of sex is to procreate. Section 377 of the IPC provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behavior.
The wordings of Section 377 of the IPC do not precisely map on to a distinction between homosexuals and heterosexuals, but it penalizes some forms of sexual expression among heterosexuals (Coitus Per OS) while necessarily criminalizing every form of sexual expression and intimacy between homosexuals.
The Criminal Law (Amendment) Act, 2013:
R.F. Nariman, J. in Navtej Singh Johar & Ors V/s Union of India (Writ Petition (Criminal) No. 76 of 2016; Supreme Court of India; Date of Decision: 06.09.2018) observed that after 2013, Section 375 of the IPC was amended so as to include anal and certain other kinds of sexual intercourse between a man and a woman, which would not be criminalized as rape if it was between consenting adults. Thus, if Section 377 of the IPC continues to penalize such sexual intercourse, an anomalous position would result, that is, a man indulging in sexual intercourse (Coitus Per OS) would not be liable to be prosecuted for rape but would be liable to be prosecuted under Section 377 of the IPC, despite the sexual activity between the man and the woman being consensual.
After the coming into force of the Criminal Law (Amendment) Act, 2013, a man is said to commit ‘rape’ if he:
i. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or,
ii. Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or,
iii. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or,
iv. Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.
If a man and woman are married then ‘Coitus Per OS’ does not constitute an offence under Section 375 of the IPC, but, if Section 377 of the IPC is allowed to operate then ‘Coitus Per OS’ (which does not result in procreation) is to be termed as an offence under Section 377 of the IPC. Marital rape is not an offence in India, thus, the argument based on ‘consent’ does not require any deliberation. Similarly, if a man and woman are not married but perform ‘Coitus Per OS’, as consenting adults then despite the sexual activity undertaken by them cannot be termed as rape, still the coitus not resulting in procreation would be considered as an offence under Section 377 of the IPC. These propositions being logically absurd, the Hon’ble Supreme Court of India, in Navtej Singh Johar & Ors (Supra) observed that they should not be allowed to operate.
Reading down Section 377 of the IPC:
In the matter of: Navtej Singh Johar & Ors (Supra), the Hon’ble Supreme Court of India observed that-
i. Section 377 of the IPC, in so far as it criminalizes consensual sexual conduct between adults of the same sex, is unconstitutional.
ii. The choice of whom to partner, the ability to find fulfillment in sexual intimacies and the right not to be subjected to discriminatory behavior are intrinsic to the constitutional protection of sexual orientation.
iii. Procreation is not the only reason for which people choose to come together, have live-in-relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship. Homosexuality and carnal intercourse between consenting adults of opposite sex cannot be tagged as ‘against the order of nature’. Sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature.
iv. Criminalization of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bisexuals or transgenders, hardly serves any legitimate public purpose or interest. Sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an in-segregable facet of individual liberty. Section 377 of the IPC fails to take note of the fact that consensual sexual acts between adults in private space are neither harmful nor contagious to the society. Section 377 of the IPC, so long as it criminalizes consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary.
v. Section 377 of the IPC, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. If anyone (a man or a woman) engages in any kind of sexual activity with an animal, then it shall be a penal offence under Section 377 of the IPC. If coitus of any description takes place between individuals, without consent of any one of them, then it shall invite penal liability as stipulated under Section 377 of the IPC.
vi. The expression ‘against the order of nature’ has neither been defined in Section 377 of the IPC nor in any other provision of the IPC. The connotation that can be given to this expression is to include all sexual acts which are not intended for the purpose of procreation. If coitus is not performed for procreation, it does not per se make it ‘against the order of nature’.
vii. Position of law as per Suresh Koushal & Anr (Supra) is that, ‘natural’ sexual intercourse is restricted not only to heterosexual coitus, but further only to acts that might possibly result in conception. Such a formulation of the concept of ‘natural’ sex excludes not only the use of contraception, which is likely to have fallen outside the hegemonic view of normative sexuality at the time, but also heterosexual coitus where one or both partners are infertile, or during the ‘safe’ period of a woman’s menstrual cycle. It is perhaps necessary to state that this formulation excludes oral sex between heterosexual partners and any homosexual act whatsoever.
viii. Homosexuality has been documented in almost 1500 species, who are not blessed with rational capabilities and the propensity to ‘nurture’ same sex thoughts as are found in mankind, thus, homosexuality cannot be perceived as an unnatural phenomenon. Same-sex love is not a mockery of nature, but rather nature at play. There is no scientific evidence that sexual orientation can be altered by medical treatment, whatsoever.
ix. Section 375 of the IPC defines the offence of rape. It provides for penetrative acts which if performed by a man against a woman without her consent, or by obtaining her consent under duress, would amount to rape. Penetrative acts (after the Criminal Law (Amendment) Act, 2013) include anal and oral sex. The necessary implication which can be drawn from the amended provision is that if such penetrative acts are done with the consent of the woman they are not punishable under Section 375 of the IPC. While Section 375 of the IPC permit consensual penetrative acts (the definition of ‘penetration’ includes oral and anal sex), Section 377 of the IPC makes the same acts of penetration punishable irrespective of consent. This creates a dichotomy in the law. Thus, Section 377 of the IPC being irrational and unintelligible must evaporate from the statute book, the IPC.
x. Sexual expression and intimacy of a consensual nature, between adults in private, cannot be treated as ‘carnal intercourse against the order of nature’.
xi. Insofar as Section 377 of the IPC criminalizes consensual sexual acts of adults (individuals above the age of 18 years who are competent to consent) in private, it is violative of Articles 14, 15, 19 and 21 of the Constitution of India, 1950.
xii. The provisions of Section 377 of the IPC will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.
xiii. That reading down of Section 377 of the IPC brings us to the conclusion that, coitus between consenting adults that is, man and man, man and woman, and woman and woman is allowed and is permissible in law and the same is to apply to all pending matters whether they are at the trial, appellate, or revisional stages. Further, bestiality in any form, that is, man and animal, or, woman and animal, is punishable under Section 377 of the IPC. Lastly, coitus ‘against the order of nature’ is too wide a term with no definite circumspection. To state that coitus which does not result in procreation is ‘against the order of nature’ is not correct. Thus, if husband and wife indulge in ‘Coitus Per OS’ where by the wife is unwilling or is rather forced to have mouth contact with male genitals of the husband then, firstly, it is not rape as per the Criminal Law (Amendment) Act, 2013 provided the wife is not less than 15 years of age, and, secondly, it shall not be construed as an unnatural offence because ‘Coitus Per OS’ if read in harmony with Section 375 of IPC (as amended by the Criminal Law (Amendment) Act, 2013) is not forbidden form of coitus.
 According to Exception 2 to Section 375 of the IPC, 1860, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.