The Union government in Bharatiya Nyaya Sanhita 2023, is proposing to replace the Indian Penal Code of 1860. One significant change in the new code is discarding ‘unnatural sex’ as an offense. Under the existing Code, ‘unnatural sex’ is punishable with a 10-year jail term for sodomy and bestiality. This change reflects a departure from the prudish moral climate of the 19th century.
It is interesting to note that the British decriminalized consensual homosexual acts done in private by men above 21 years of age in 1967. In 2018, the Supreme Court of India, in its judgment in the Navtej Johar case, decriminalized consensual sexual relations in private among adult members of the LGBTQ community by reading down Section 377 of the IPC.
The new Bharatiya Nyaya Sanhita does not have any provision similar to Section 377 of the IPC, which criminalizes carnal intercourse against the order of nature. This situation raises the question of whether forcing oneself on another man, either through coercion or by utilizing a position of superiority, would still be regarded as an offense.
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Another question that arises is whether bestiality, which is defined as intercourse against the order of nature, would still be considered an offense.
While the new code removes ‘unnatural sex’ as an offense, it retains provisions related to ‘unnatural sex’ in two other sections. Section 100 grants the right to self-defense in cases of unnatural sex, enabling a person who is subjected to such acts to inflict injury or cause the death of the assailant without incurring liability for punishment. Section 367(4) states that a person who kidnaps someone to satisfy their “unnatural lust” will be punished with a 10-year imprisonment.
The 2018 Supreme Court judgment may have influenced the NDA government’s mindset in proposing these changes, although the government had opposed the concept of same-sex marriage during the hearing of petitions demanding marriage rights for same-sex couples.
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The British codified the penal law in 1860, which lasted for more than 20 years. However, the NDA government’s exercise to replace the Indian Penal Code is relatively recent, spanning only two to three years. In 1967, the Parliament passed the Sexual Offences Act, which decriminalized homosexual acts between consenting parties above the age of 21. Over 125 countries have decriminalized same-sex relationships among consenting adults.
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