TOPIC-9:
UNNATURAL OFFENSES AND CRUELTY
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:
1. Voluntariness: The sexual act must have been undertaken voluntarily and without
coercion.
2. Non-consensual: The sexual act must have been undertaken without the consent of all
parties involved.
3. Against the order of nature: The sexual act must be considered unnatural or non-
procreative according to prevailing cultural or legal norms.
4. 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:
1. 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.
2. Religious beliefs: Many religious communities in India, including conservative
interpretations of Hinduism, Islam, and Christianity, view homosexuality as sinful or
immoral.
3. 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.
4. Lack of representation: LGBTQ+ individuals are often excluded from mainstream
cultural and political discourse in India, leading to a lack of representation and visibility.
5. 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:
1. 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.
2. Legal discrimination: In many countries, including India, LGBTQ+ individuals face legal
discrimination in areas such as marriage, adoption, and inheritance rights.
3. 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.
4. 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.
5. 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.
6. 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:
1. 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.
2. 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.
3. 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.
4. 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:
1. 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.
2. 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.
3. 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:
1. 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.
2. 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.
3. 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:-
1. The Indian Penal Code, 1860, available at
https://www.indiacode.nic.in/handle/123456789/1978?
view_type=search&sam_handle=123456789/1362
2. Naz Foundation v. Government of NCT of Delhi, (2009) 111 DRJ 1, available at
https://indiankanoon.org/doc/294843/
3. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, available at
https://indiankanoon.org/doc/147655443/
4. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, available at
https://indiankanoon.org/doc/111639768/
5. "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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challenges-coming-out
8. Independent Thought v. Union of India, (2017) 10 SCC 800.
9. Shafin Jahan v. Asokan K.M. & Ors, (2018) 16 SCC 368.
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