Role Name Affiliation

Criminology

Fundamentals of Crime, Criminal Law and Criminal Justice

Unnatural Offences

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Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University Delhi
Paper Coordinator Dr. Debdatta Das Asst. Prof., The University of
Burdwan, West Bengal
Content Writer/Author Dr. Dipa Dube Associate Professor, Rajiv
Gandhi School of Intellectual
Property Law, IIT Kharagpur
Content Reviewer Prof. (Dr.) K. I. Vibhute Professor of Law & Dean,
Rajiv Gandhi School of
Intellectual Property Law,
IIT Kharagpur (West Bengal)
DESCRIPTION OF MODULE

Items Description of Module

Subject Name Criminology
Paper Name Fundamentals of Crime, Criminal Law and
Criminal Justice
Module Unnatural Offences
Name/Title
Module Id 06
Objectives Learning Outcome:

 To make the learners understand the law

relating to unnatural offences in India.

 To make the learners appreciate the genesis

and development of the law.

 To make the learners acquainted with the key

issues arising in unnatural offences in
contemporary times.

Prerequisites General understanding of Sexual offences with

special reference to IPC
Key words Unnatural offence, carnal intercourse, homosexuality,
sodomy, bestiality

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Introduction
A crime is considered as an act made punishable by the state. For a conduct to be
considered criminal, it must deviate from the acceptable social norms and be regarded
by the larger society as anti- social, harmful, bad or immoral. Fuller maintains that
sociologically speaking, a criminal statute is simply the formal embodiment of moral
values of the dominant political group in society, in an official edict, reinforced with
the official penal sanction (Fuller, 1942). However, there exists a variety of conduct,
although criminal in the legal sense, is not offensive to moral conscience. Unnatural
offence, as a crime, comes in the former category where the morality of the society
labels the conduct as harmful, pernicious and immoral and thereby, prohibited under
the law. As stated by the Law Commission of India, “Ultimately the answer to the
question whether homosexual acts ought to be punished depends on the view one
takes of the relationship of criminal law to morals. The debate on the subject, sparked
off by Report of the Wolfenden Committee, has not yet come to an end. There will
always be two views on the question how far it is the business of criminal law to
enforce notions of private morality. If one shares the reasoning of the Committee,
namely, that there is a sphere of private morality in which criminal law has no
business, then the answer is clear, but it is well known that there are distinguished
thinkers who take a different view, emphasising the need for preserving the society‟s
cherished beliefs. It appears to us that, in this highly controversial field, the only safe
guide is what would be acceptable to the community. We are inclined to think that
Indian society, by and large, disapproves of homosexuality and this disapproval is
strong enough to justify it being treated as a criminal offence, even where adult
indulge in it in public.” (Law Commission of India, 1971)

Section 377 IPC criminalizes sex other than heterosexual penile-vaginal. The
legislative history of the subject indicates that the first records of sodomy as a crime
at Common Law in England were chronicled in the Fleta, 1290, and later in the
Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Acts of
sodomy later became penalized by hanging under the Buggery Act of 1533 which
was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for
the subsequent criminalisation of sodomy in the British Colonies. Oral- genital
sexual acts were later removed from the definition of buggery in 1817. And in
1861, the death penalty for buggery was formally abolished in England and Wales.
However, sodomy or buggery remained as a crime "not to be mentioned by
Christians." (Naz Foundation v. Govt. of NCT, 2010). The English law was
reformed in Britain by the Sexual Offences Act, 1967, which decriminalised
homosexuality and acts of sodomy between two consenting adults (above age of

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21) in private in pursuant to the recommendation made by the Wolfenden
Committee. The Indian Penal Code, 1860, drafted by Lord Macaulay, was
introduced in 1861 in British India and the offence of unnatural carnal intercourse
was included in Chapter XVI of the IPC titled "Of Offences Affecting the Human
Body". The offence has remained unaltered over the years and in spite of
recommendations to delete the same in light of modifications to the offence of rape
and the aspect of consent, it has continued in its original form.

Unnatural Offence- Constituent Elements

Section 377 of the Indian Penal Code 1860 deals with unnatural carnal intercourse
and is intended to punish the offense of sodomy, buggery and bestiality. The offense
consists in the carnal knowledge committed against the order of nature by a person
with a man, or in the same unnatural manner with a woman, or by a man or woman in
any manner with an animal. Under the section, consent of the passive partner is
wholly immaterial and the party consenting is equally liable as an abettor. The
essential ingredients to prove the offense are:
a) that the accused had carnal intercourse with a man, woman or animal
b) that it was against the order of nature
c) that it was done voluntarily
d) that there was penetration

Carnal Intercourse against the order of nature. The term 'carnal' means fleshly;
'intercourse' in Latin is intercursus, which signifies literally, a running between;
legally the word is used to mean connection. In its broadest sense, it refers to the
carnal copulation by human beings with each other against nature or with a beast in
which sense it includes the crimes against nature, bestiality, buggery, cunnilingus and
fellatio. In its narrower sense, it is the carnal copulation between two human beings
per anus or by a human being in any manner with a beast ( Corpus Juris Secundum,
1977).
In 1884, the court was confronted with the case of a man who „forced open a child‟s
mouth and put his private parts and completed his lust‟(Govt. v. Bapoji Bhat, 1884).
The court held that „to constitute the offense of sodomy, the act must be in that part
where sodomy is usually committed‟ and on that basis held that the act of oral
intercourse was not an act criminalized under section 377 IPC (Rex v. Samuel Jacobs,
1817).

In Sirkar v. Gula Mythien Pillai Chaithu Maho. Mathu (1908), a Full Bench of the
Travancore High Court held that having connection with a person in the mouth was an
offence under Section 377 of the Penal Code. In a short judgment, the learned Judges
held that it was unnecessary to refer to English Statute Law and text books which
proceeded upon an interpretation of the words sodomy, buggery and bestiality; and

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that the words used in the Penal Code are simple and wide enough to include all acts
against the order of nature.
By 1914, the court noted in the much cited case of Khanu (Khanu v. Emperor, 1925),
that „the natural object of sexual intercourse is that there would be the possibility of
conception of human beings, which in the case of coitus per os (oral intercourse) is
impossible.‟ It then went on to define sexual intercourse as:
„... The temporary visitation of one organism by a member of the other
organization, for certain clearly defined and limited objects. The primary
objective of the visiting organization is to obtain euphoria by means of a detent
of the nerves consequent on the sexual crisis. But there is no intercourse unless
the visiting member is enveloped at least partially by the visited organization
organism, for intercourse connotes reciprocity. Looking at the question in this
way it would seem that the sin of Gomorrah is no less carnal intercourse than
the sin of sodomy.‟
The decision in Khanu laid the parameters by which section 377 came to be
interpreted in subsequent times. The object was to criminalize forms of sex which
were penetrative and which did not result in procreation (Narrain, 2008).

The postcolonial era witnessed a further expansion of the ambit of section 377
keeping in mind the principle laid down by Khanu. In 1968, the High Court was urged
to adjudicate as to whether „manipulation and movement of the penis‟ whilst being
held by a minor boy in such a way as to create an orifice like thing for making the
manipulated movement of insertion and withdrawal up to the point of ejaculation of
semen‟ comes within the sweep of „unnatural carnal intercourse‟. The High Court
went on to hold that „In the instant case, there was an entry of a male penis in the
orifice of the mouth of the victim. There was the enveloping of a visiting member by
the visited organism. There was thus reciprocity; intercourse connotes reciprocity…
the act in question will amount to an offence, punishable under Section 377 of the
Indian Penal Code.‟(Lohana Vasantlal Devchand v. State, 1968)

In the instant case, the court expanded on the logic of Khanu to lay down the imitative
test, which laid down as under:

„what is important is whether there was an act of imitating the actual act of
sexual intercourse or carnal intercourse. If it was an imitative act of sexual
intercourse to appease his sex urge or the sexual appetite, it would be an
unnatural offense punishable under section 377 of the Indian Penal Code.‟

In 1969, the Kerala high court was called upon to decide as to whether an act of
inserting a male organ between the thighs, kept together and tight, amounts to an
offence under section 377 IPC. The high court held the same in the affirmative. (State
of Kerala v. Kundumkara Govindam, 1969). This logic was followed by the Madras
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High Court wherein it had to decide the same question whether the 'act of committing
intercourse between the thighs is carnal intercourse against the order of nature‟. The
court decided that in intercourse between the thighs, the visiting male organ is
enveloped at least partially by the organism visited, the thighs, the thighs are kept
together and tight... The word 'insert' means 'place, fit, thrust'. Therefore, if the male
organ is 'inserted' or thrust between the thighs there is 'penetration' to constitute
unnatural offense (Brother John Anthony v. State, 1992).

Somewhat in a similar manner, in Calvis Francis (Calvin Francis v. State of Orissa,

1992) where the accused inserted his genital organ inside the mouth of a six year old
child, the Orissa High Court relying on the previous decisions held that “Words used
in statutory definitions of the crime of Sodomy have been frequently construed as
more comprehensive and as not depending on, or limited by the common law
definition of the crime, at least as not dependent on the narrower definition of sodomy
afforded by some of the common law authorities and are generally interpreted to
include within their provisions all acts of unnatural copulation, whether with mankind
or beast.” It therefore, concluded that Section 377 is comprehensive to engulf any act
like the alleged act of the accused and convicted him for the offence (Naeem Ahmad
v. State of Uttaranchal, 2014, Wasudeorao Arvikar v. State of Maharashtra, 2005).
Bestiality, penal - animal penetration, also attracts the provisions of s 377. In a
judgment from the Lahore High Court (Khandu v. Emperor, 1934), it was held that
sexual intercourse per nose with a bullock is an unnatural offence within the
meaning of Section 377.

Thus, there is consistent view in this country, and it appears that any type of
intercourse, which is against the order of nature, and where there is penetration,
whether in a natural orifice or a created orifice within the human body of another,
would constitute an offence under Section 377 (Allan John Waters and Duncan
Alexander Grant v. State of Maharashtra and Maharukh Adenwalla, 2008).

Voluntarily. This lays down the mens rea for the offence. The act of an unnatural
carnal intercourse must have been a voluntary act on the part of the accused. This
indicates that the act should be an intentional one, and not merely non-intentional or
accidental. The word „voluntarily‟ has been defined in s 39 IPC in relation to the
causation of effects and not to the doing of acts from which those effects result. It
provides that „ A person is said to cause an effect “voluntarily” when he causes it by
means whereby he intended to cause it, or by means which, at the time of employing
those means, he knew or had reason to believe to be likely, to cause it.‟ The Code
makes no distinction between cases in which a man causes an effect designedly and
cases in which he causes it knowingly or having reason to believe that he is likely to
cause it. If the effect is a probable consequence of the means used by him, he causes it
voluntarily, whether he really meant to cause it or not. He is not allowed to urge that

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he did not know or was not sure that the consequence would follow; but he must
answer for it just as if he had intended to cause it (Manohar, Singh, & Srivastava,
2010)

Penetration. "To penetrate" means "to enter or pass through or force a way into or
through”. By virtue of the explanation appended to the section, penetration,
howsoever minimal it be, is required to constitute the carnal intercourse. Even the
slightest degree of penetration is enough and it is not necessary to prove the
completion of the act by the emission of seed (G.D. Ghadge v. State of Maharashtra,
1980, R. v. Hughes, 1841).

Punishment. The punishment for the offence is imprisonment for life or

imprisonment of either description for a term which may extend to ten years and fine.
The Law Commission in its 42nd Report observed that the sentence for the offence is
„unduly harsh‟ and „quite unrealistic‟ and that no court would like to sentence a man
for life for committing such acts. It suggested leniency in the punishment for buggery,
though it recommended a comparatively longer term of imprisonment for such an
assault on a minor. Stern punishment for unnatural offences against children has also
been suggested in subsequent reports of the Law Commission (Law Commission of
India, 1997, 2000).

The courts have also been seen to impose relatively lighter punishment for the
offence. In Fazal Rab Choudhary v. State of Bihar (1983), where the appellant
committed an unnatural offence upon a young boy, the Supreme Court held “The
offence is one under Section 377 I.P.C., which implies sexual perversity. No force
appears to have been used. Neither the notions of permissive society nor the fact that
in some countries homosexuality has ceased to be an offence has influenced our
thinking. However in judging the depravity of the action for determining quantum of
sentence, all aspects of the matter must be kept in view.” Accordingly, the Court
reduced the quantum of sentence to 6 months imprisonment. Where a highly educated
person committed the offence, the Supreme Court let him off with a sentence of two
months‟ imprisonment (Chitranjan Dass v. State of UP, 1974). In yet another case,
the accused committed unnatural offence with a minor girl who gave minute details of
the offence. The conviction of the accused was confirmed but the sentence was
reduced to two years considering that he had a broken family life and belonged to the
lower strata of society (Mihir v. State of Orissa, 1992). In Kurissum Moottil Anthony,
where the accused trespassed into the house of the victim, a 10 year old girl, and
committed carnal intercourse against the order of nature, the Supreme Court upheld
the order of the trial court and affirmed a sentence of one year along with fine of Rs.
2000 to the victim (State of Kerala v. Kurissum Moottil Anthony, 2007).

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With regard to murder coupled with unnatural offence, the courts have consistently
held that it would not warrant a death sentence but rather an imprisonment for life
would serve the cause of justice (Sangeet v. State of Haryana, 2013). In State of West
Bengal v. Sanjay, the court held, “Undoubtedly, the crime committed by the appellant
was grave, serious and heinous. He had a dirty and perverted mind and no control
over his carnal desire. The victim is a helpless boy aged about 10-12 years …the
appellant had carnal intercourse against the order of nature with the victim boy
regularly but eliminated him to cause disappearance of the evidence of his misdeed.
Nevertheless, it cannot be held that he is such a dangerous person to spare his life
would endanger the community and would constitute a continuing threat to the
society.” Thereby, the court sentenced him to a minimum period of 25 years
imprisonment. Where a gruesome murder was committed by the accused on an
innocent boy after an unnatural offence being perpetrated on him, the court held that
incarceration of a period of thirty years without remission will be an adequate
punishment, rather than death sentence (Anil @ Anthony Arikswamy Joseph v. State
of Maharashtra, 2014). Similarly, where two accused violently preyed on the body of
a tender girl aged four years which led to her death, the court imposed a sentence of
life imprisonment (State of Delhi v. Sunil, 2001).

Evidence. The mere fact that the accused has the reputation of being a confirmed
sodomite, is not sufficient for his conviction under this section, for which there must
be distinct evidence of the time when, the place where and the person with whom he
committed the offence (Khairiti v. Emperor, 1884). And even when a specific charge
is laid against the accused, “it is very desirable”, said Straight J ., “ that there should
be some medical evidence on the record, if it is possible to get it, as to the condition
of the anus of the person on whom the act of sodomy is said to have been perpetrated,
or at any rate, some proof as to the appearance of the part of his body shortly after the
alleged act of unnatural intercourse, from which penetration may properly be
inferred.” (Ghasita, 1884).

In Gowrishankara Swamigalu v. State of Karnataka and Anr. ( 2008), the Supreme

Court held that when an expert categorically ruled out the commission of
the unnatural offence having regard to his expertise, it was obligatory on the part of
the prosecution to draw his attention to the said authorities so as to enable him to
furnish an explanation. It may be true that absence of medical offence by itself may
not be a crucial factor in all cases, but, the same has to be taken into consideration as a
relevant factor when other evidences point towards the innocence of the appellant.
Where the report of the chemical examiner showed that the rectal smear was positive
for spermatozoa, the presence of the human-spermatozoa in the rectum of the
deceased has been held to be a definite proof of fact that the boy has been subjected to
the carnal intercourse against the course of nature (Kedarnath v. State of Rajasthan,
1985). In Anil @ Anthony, a DNA test was conducted which clearly indicated that the

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profile obtained from the anal smear of the deceased matched with the accused.
Though based on circumstantial evidence, the Court relied on the evidence of the
doctor, chemical analyser and concluded that the accused had committed an offence
of extreme perversity under s 377 IPC on a young boy (Anil @ Anthony Arikswamy
Joseph v. State of Maharashtra, 2014).

As in case of sexual offences such as rape, in case of unnatural offences the testimony
of the victim may be sufficient to hold the accused liable for the offence. There is no
rule that there can be no conviction on the uncorroborated testimony of the subject of
the offence even if there is no reasonable doubt in the mind of the Judge as to the guilt
of the accused. Though corroboration is ordinarily required, it may be dispensed with
in exceptional cases and a conviction based on the uncorroborated testimony of the
subject of the offence cannot be said illegal (Emperor v. Kaku Mashgul, 1941). In
State of Kerala v. Kurissum Mootil Anthony (2007) it was held that an accused cannot
cling to a fossil formula and insist on corroborative evidence, even if taken as a
whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial
response to human rights cannot be blunted by legal jugglery. In a case whether
corroboration is necessary or not is again a question in regard whereto no hard and
fast rule can be laid down. In the aforementioned case, the victim was a girl of 10
years. The accused trespassed into her house when she was alone and committed
an unnatural offence. The testimony of the girl found corroboration from the medical
evidence. That was held to be sufficient to maintain the conviction of the accused in
the case. The rule regarding non requirement of corroborations is equally applicable
to a case under Section 377 IPC (Bhupinder Sharma v. State of HP, 2004).

Constitutionality of s 377. Naz Foundation, a non- governmental organisation, filed

a Public Interest Litigation challenging the constitutionality of Section 377 IPC to the
extent that the said provision criminalised consensual sexual acts between adults in
private. The challenge was founded on the plea that Section 377 IPC, on account of it
covering sexual acts between consenting adults in private, infringed the fundamental
rights guaranteed under Articles 14, 15, 19 & 21 of the Constitution of India. The
petitioners submitted that Section 377 IPC should apply only to non-consensual penile
non-vaginal sex and penile non - vaginal sex involving minors. After undertaking
extensive examination of arguments and counter arguments of the parties,
constitutional provisions, judicial pronouncements and juristic opinions from home
and abroad, the Delhi High Court accepted the contention of the petitioner that s 377,
insofar as it criminalises consensual sexual acts of adults (persons above 18 years of
age) in private, is, violative of Arts. 14, 15 & 21 of the Constitution. The provisions
of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex
and penile non-vaginal sex involving minors (Naz Foundation v. Govt. of NCT, 2010).
This decision however came to be challenged in Suresh Kumar Koushal and Anr. v.
Naz Foundation ( 2014).
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The Supreme Court of India, after an elaborate hearing of the arguments of the
parties, held that “the acts which fall within the ambit of the section can only be
determined with reference to the act itself and the circumstances in which it is
executed. The various judicial decisions refer to non-consensual and markedly
coercive situations and the keenness of the court in bringing justice to the victims who
were either women or children cannot be discounted while analyzing the manner in
which the section has been interpreted. We are apprehensive of whether the Court
would rule similarly in a case of proved consensual intercourse between adults. Hence
it is difficult to prepare a list of acts which would be covered by the section.
Nonetheless in light of the plain meaning and legislative history of the section, we
hold that Section 377 Indian Penal Code would apply irrespective of age and consent.
It is relevant to mention here that the Section 377 IPC does not criminalize a
particular people or identity or orientation. It merely identifies certain acts which if
committed would constitute an offence. Such a prohibition regulates sexual conduct
regardless of gender identity and orientation.” (Suresh Kumar Koushal and Anr. v.
Naz Foundation, 2014)

With regard to Arts. 14 and 15, the court opined that those who indulge in carnal
intercourse in the ordinary course and those who indulge in carnal intercourse against
the order of nature constitute different classes and the people falling in the latter
category cannot claim that Section 377 suffers from the vice of arbitrariness and
irrational classification. What Section 377 does is merely to define the particular
offence and prescribe punishment for the same which can be awarded if in the trial
conducted in accordance with the provisions of the Code of Criminal Procedure and
other statutes, the person is found guilty. Therefore, it is not correct to say that 377
Indian Penal Code is ultra vires to Arts. 14 and 15 of the Constitution. Furthermore, a
miniscule fraction of the country's population constitute lesbians, gays, bisexuals or
trans-genders and in the last more than 150 years less than 200 persons have been
prosecuted (as per the reported orders) for committing offence under Section 377
Indian Penal Code. Thus allegations of abuse and misuse of the section cannot be
made sound basis for declaring it ultra vires to the provisions of Arts. 14, 15 and 21
of the Constitution. (Suresh Kumar Koushal and Anr. v. Naz Foundation, 2014)

The court further added that the requirement of substantive due process has been read
into the Indian Constitution through a combined reading of Arts. 14, 21 and 19 and it
has been held as a test which is required to be satisfied while judging the
constitutionality of a provision which purports to restrict or limit the right to life and
liberty, including the rights of privacy, dignity and autonomy, as envisaged under Art.
21. In order to fulfil this test, the law must not only be competently legislated but it
must also be just, fair and reasonable. The right to privacy has been read into Art. 21
through an expansive reading of the right to life and liberty. The scope of the right as

10
also the permissible limits upon its exercise have been laid down in several cases
(Gobind v. State of MP, 1975, Kharak Singh v. State of UP and Ors., 1964).

As one of the basic Human Rights, the right of privacy is not treated as absolute and is
subject to such action as may be lawfully taken for the prevention of crime or disorder
or protection of health or morals or protection of rights and freedoms of others. Every
act which offends against or impairs human dignity would constitute deprivation pro-
tanto of this right to live and it would have to be in accordance with reasonable, fair
and just procedure established by law which stands the test of other fundamental
rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment
would be offensive to human dignity and constitute an inroad into this right to live
and it would, on this view, be prohibited by Art. 21 unless it is in accordance with
procedure prescribed by law, but no law which authorises and no procedure which
leads to such torture or cruel, inhuman or degrading treatment can ever stand the test
of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void
as being violative of Articles 14 and 21. (Suresh Kumar Koushal and Anr. v. Naz
Foundation, 2014)

It is well settled that mere possibility of abuse of a provision of law does not per se
invalidate legislation. It must be presumed, unless contrary is proved, that
administration and application of a particular law would be done "not with an evil eye
and unequal hand". Section 377 has been assailed on the ground that it has been used
to perpetrate harassment, blackmail and torture on certain persons, especially those
belonging to the LGBT community. However, this treatment is neither mandated by
the section nor condoned by it and the mere fact that the section is misused by police
authorities and others is not a reflection of the vires of the section. It might be a
relevant factor for the Legislature to consider while judging the desirability of
amending Section 377 Indian Penal Code. (Suresh Kumar Koushal and Anr. v. Naz
Foundation, 2014)

Accordingly, the court upheld that Section 377 IPC does not suffer from the vice of
unconstitutionality. Nevertheless, the court opined that the legislature is free to
consider the desirability and propriety of deleting the section in future.

Emerging Issues. In present times, the legality of the provision and its underlying
moral values have been called in question. It has been put to severe criticism in the
wake of the changing times. Section 377 IPC seeks to undermine the notion of
individual rights and liberty and uphold the Victorian notions of morality which
emphasized on heterosexual relations. Thus, anything beyond was viewed as a mental
illness, morally wrong, socially deviant and even, criminal, in the sense of penalizing
such behaviour amongst individuals.

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The changing perceptions of morality and the widening concept of rights have
challenged the archaic stance. Right to sexuality has been viewed as a fundamental
aspect of right to life and liberty. Sexuality denotes the right to express one‟s
sexuality and to be free from discrimination on the ground of sexual orientation. It is a
basic human right inherent to all human beings. The United Nations in the Universal
Declaration of Human Rights unequivocally expresses that “All human beings are
born free and equal in dignity and rights.” The equality and non-discrimination
guarantee provided by human rights applies to all people, regardless of sex, sexual
orientation and gender identity. Moreover, United Nations human rights treaty bodies
confirm that sexual orientation and gender identity are included among prohibited
grounds of discrimination. This means that it is unlawful to make any distinction of
people‟s rights based on the fact of their sexual orientation. This position has been
confirmed repeatedly in decisions and general guidance issued by several treaty
bodies, such as the United Nations Human Rights Committee, the Committee on
Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the
Committee against Torture, and the Committee on the Elimination of Discrimination
against Women(United Nations Human Rights, n.d.).

In Indian context, the right to sexuality may be read as an inherent aspect of right to
life under Art 21 of the Indian Constitution. The Supreme Court, in a series of cases,
has clarified that right to life includes within it the right to live with dignity. It is not
restricted to mere animal existence, it is much more than just physical survival(Calvin
Francis v. State of Orissa, 1992). The Supreme Court has enumerated that “the right
to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing one-self in diverse forms, freely
moving about and mixing and commingling with fellow human beings.” The Court
has also reiterated the obligation of the State to create a climate where members of
society belonging to different faiths, caste, creed live together and therefore, the State
has a duty to protect their life, liberty, dignity and worth of an individual which
should not be jeopardised or endangered(S.S. Ahluwalia v. Union of India, 2001).
Though the question as to whether Sec 377 IPC violates Art 21 has been set aside by
the Court, yet the situation remains open for future scrutiny and debate.

Conclusion. The offence of unnatural sexual intercourse is one of colonial origin

which intends to punish acts of intercourse against the order of nature, whether
consensual or non-consensual. In recent times, the section has come under serious
scrutiny and criticism as it offends the freedom of choice and privacy of individuals.
People with a different sexual orientation have often alleged harassment and
discrimination because of the existence of Section 377 IPC. Though the apex court
has declared the section constitutional, the future appears to be garnered towards a

12
change with non-consensual acts coming within its fold, while leaving aside acts in
private between consensual adults.

References
Allan John Waters and Duncan Alexander Grant v. State of Maharashtra and

Maharukh Adenwalla, Manupatra 636 (Maharashtra High Court 2008).

Anil @ Anthony Arikswamy Joseph v. State of Maharashtra, 4 SCC 69 (Supreme

Court 2014).

Bhupinder Sharma v. State of HP, CriLJ 1 (Supreme Court 2004).

Brother John Anthony v. State, Cri LJ 1352 (Madras High Court 1992).

Calvin Francis v. State of Orissa, 1 OLR 316 (Orissa High Court 1992).

Chitranjan Dass v. State of UP, AIR 2352 (Supreme Court 1974).

Fuller, R. C. (1942). Morals and the criminal law. Journal of Criminal Law and

Criminology (1931-1951), 32(6), 624–630.

G.D. Ghadge v. State of Maharashtra, CriLJ 1380 (Bombay High Court 1980).

Ghasita, AWN 25 (1884).

Gobind v. State of MP, 2 SCC 148 (Supreme Court 1975).

Govt. v. Bapoji Bhat, 7 Mysore LR 280 (1884).

Gowrishankara Swamigalu v. State of Karnataka and Anr, AIR 2349 (Supreme Court

2008).

Group, W., Company, A. L. B., & Company, W. P. (1977). Corpus Juris Secundum:

A Complete Restatement of the Entire American Law as Developed by All

Reported Cases (Vol. 81). West Publishing Company. Retrieved from

https://books.google.co.in/books?id=U3coAQAAMAAJ

Kedarnath v. State of Rajasthan, Manupatra 281 (Rajasthan High Court 1985).

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Khairiti v. Emperor, 6 ILR 201 (Allahabad High Court 1884).

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