On The Indian Penal Code
By the middle of the 19th century A.D, India was well under the clutches of the British Raj. Several laws were passed, the majority of which are still in force in India, accepted by the Indians and which have stood the test of time. One such important law promulgated by the British was The Indian Penal Code.
The draft of the Indian Penal Code was prepared by the First Law Commission. It was chaired by Lord Macaulay. Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Suggestions were also derived from the French Penal Code and from Livingstone's Code of Louisiana. The draft underwent a very careful revision at the hands of Sir Barnes Peacock, Chief Justice, and the Judges of the then Calcutta Supreme Court who were members of the Legislative Council, and was passed into law in 1860. Unfortunately Macaulay (1800-1859) did not survive to see his masterpiece enacted into a law.
Such is the grandeur of the classic Indian Penal Code that even at a time when anti-imperialistic fervor conspired with fanatic nationalism was hell bent on pulling down any symbol of imperialism, the Code stood its ground not only in India, The Indian Penal Code has been inherited by Pakistan and Bangladesh, formerly part of British India and has also been adopted wholesale by the British colonial authorities in Burma, Sri Lanka, Malaysia, Singapore and Brunei, and remains the basis of the criminal codes in those countries.
Over a period of 150 years the Indian Penal Code has served the Indian society mutatis mutandis and today it faces another test of its pertinence in the modern world, the debate raging about the constitutional validity of Section 377 under Chapter XVI “Of offences affecting the human body”, categorised under the sub-chapter titled “Of Unnatural Offences”.
Section 377 of Indian Penal Code:
The sections states as follows:
“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.”
Ingredients of the Offence:
The essential ingredients of the offence under Section 377 are as follows:-
(a) Accused had carnal intercourse;
(b) Such intercourse was with any man, woman, or animal and
(c) It was against the order of nature.
Judicial interpretation of Section 377
The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section.
In Khanu v. Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings.... [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.”
It appears that the courts had earlier held in R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices.
In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.”
In Calvin Francis v. Orissa, 1992 (2) Crimes 455, relying on Lohana, it was held that oral sex fell within the ambit of Section 377 IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria.
In Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, it was observed that Section 377 IPC implied “sexual perversity”. It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.
Hence the Section in question criminalises sex other than heterosexual penile-vaginal intercourse.
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