Tuesday, February 27, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

IPCMODEL ANSWER

UNNATURAL OFFENCES

Explain in detail the offence of Unnatural sexual intercourse given under section 377 of Indian Penal Code, 1860.

It cannot be denied by anyone that article 21 of the Indian Constitution is one of the most important articles that provides very basic right i.e., Right to life. This article not only provides right to life but it provides right to live a dignified life. Article 21 of the Indian Constitution only states this right i.e., right to live a dignified life but ‘n’ numbers of basic rights are included under article 21 of the Indian Constitution implicitly and right to have sexual intercourse is one of those rights.

Right to have a sexual intercourse is one of the basic rights that is necessary to live a dignified life. But according to our Indian society, sexual intercourse is one the means to procreate a child. The basic aim of sexual intercourse is not only to satisfy the sexual desire of the parties but to procreate a child and helping the society in continuation by adding a unit into it. So, our Indian society permits only that type of sexual intercourse by which parties could procreate a child. All other kinds of sexual intercourses are not permissible in our Indian society and they are considered as unnatural sexual intercourse.

Section 377 of Indian Penal Code, 1860, deals with the provisions of unnatural sexual intercourse and according to this section if any person voluntarily has carnal intercourse against the order of nature with any man, woman or animal, then in such a case, that person will be held liable for having committed the offence of unnatural offence given under section 377 of Indian Penal Code, 1860. According to the provisions of section 377 of Indian Penal Code, 1860, carnal intercourse or anal sexual intercourse is considered as against the order of nature and unnatural sexual intercourse. So, if any engages into unnatural sexual intercourse, then in such a case, that person is held liable for having committed the offence given under section 377 of Indian Penal Code, 1860.

 

Section 377 of Indian Penal Code, 1860, not only prescribes the offence but also expresses the punishment and according to this section, if any person commits unnatural sexual intercourse, then he 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.

According to the provisions of section 377 of Indian Penal Code, 1860, it can be said that if two persons who belong to different genders indulge into a sexual intercourse in a natural manner, then in such a case, that will not be considered as an offence but if two persons who belong to same gender indulge into a sexual sexual intercourse in an unnatural manner, then in such a case, that will be considered as an offence. So, section 377 of Indian Penal Code, 1860, somewhere prohibits homosexual activities.

  

So, it can be said that our Indian society permits heterosexual activities and condemns homosexual activities. That is why, section 377 was introduced in Indian Penal Code, 1860. But the constitutional validity of section 377 of Indian Penal Code, 1860, was challenged in so many cases on the ground that it violates the provisions of Article 14, 19 and 21 of Indian Constitution.

In the leading case of Naz Foundation vs Government of Delhi NCT of India, the constitutional validity of section 377 of Indian Penal Code, 1860, was challenged before Delhi High Court on the ground that it violates the provisions of Article 14, 15 and 21 of the Indian Constitution. In this case, Delhi High Court struck down the provisions of section 377 of Indian Penal Code, 1860, which prohibits the homosexual activities. So, in this case, Delhi High Court ruled in favour of decriminalizing homosexuality and scrapped down the then existing law.

But this judgement of Delhi High Court was overturned by the Supreme Court of Indian in the leading case of Suresh Kumar Koushal vs. Naz Foundation and held that amending or repealing section 377 of Indian Penal Code, 1860, should be matter left to Parliament, not to judiciary.

But at last, this controversy was settled by the Judges of Supreme Court in the leading case of Navtej Singh Johar vs. Union of India and unanimously declared that part of section 377 of Indian Penal Code, 1860, unconstitutional which criminalizes consensual sexual conduct between adults of the same sex. In this case, the Hon’ble Supreme Court held that consensual adult gay sex is not a crime and the present provisions of section 377 of Indian Penal Code, 1860, violates the provisions of Article 14 and 21. Moreover, the Hon’ble Supreme Court said that the remaining part of Section 377 of Indian Penal Code, 1860, which deals with the sexual intercourse with minors, non- consensual sexual acts and bestiality are still in force.

  

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!