GOI's new IPC proposes doing away with 'unnatural sex' as offence

The government of India, as part of the Bharatiya Nyaya Sanhita, 2023, a proposal aimed at revising the IPC that was originally created by the British in 19th century, has taken steps to eliminate the classification of ‘unnatural sex’ as a criminal offence.

This particular provision in the existing Code presently leads to a 10-year prison sentence for acts of sodomy and bestiality.

It is interesting to note that back in 1967, the British government decriminalized consensual homosexual activities conducted privately among men aged 21 and above.

In 2018, a five-judge panel of the Supreme Court made a historic decision in the Navtej Johar case, thereby decriminalizing private consensual sexual interactions involving adult LGBTQ individuals. This was achieved by modifying Section 377 of the IPC.

Notably, the Bharatiya Nyaya Sanhita contains no counterpart to Section 377 of the IPC. This particular section states: “Whoever voluntarily engages in sexual intercourse against the order of nature with a man, woman, or animal commits an unnatural offence.”

This provision has been excluded from the new code, prompting questions about whether an act of one man forcing himself upon another, whether through coercion or a position of authority, would still be deemed an offence.

Another query arises concerning whether acts of bestiality by a man or woman would be considered an offence, given that it is defined as intercourse contrary to the natural order.

While the concept of ‘unnatural sex’ is referenced in two other sections of the IPC, the Bharatiya Nyaya Sanhita retains these provisions without alteration. Section 100, which addresses the right to self-defence, permits a person subjected to unnatural sex to defend themselves, even to the extent of inflicting harm or causing the assailant’s death, without facing punishment for protecting oneself from sodomy.

An equivalent provision can now be found in Section 38 of the Bharatiya Nyaya Sanhita.

Section 367(4) stipulates that kidnapping someone for the purpose of fulfilling “unnatural lust” will result in a 10-year imprisonment. A parallel regulation is now outlined in Section 138(4) of the Bharatiya Nyaya Sanhita.

While the British meticulously formulated penal legislation in 1860 through a process spanning over two decades, the recent efforts by the government have taken only a mere two to three years.

Interestingly, in 1957, the UK published the Wolfenden Committee Report, recognizing how anti-sodomy laws contributed to a climate of blackmail, harassment, and violence against homosexuals.

Following this report, the House of Lords initiated legal reforms to decriminalize private homosexual acts among consenting adults.

The Sexual Offences Act of 1967 was subsequently enacted in England, decriminalizing homosexual activities as long as the parties involved consented and were above the age of 21. Over 125 countries have since decriminalized consensual same-sex relationships among adults

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