The long controversial section 377, which had declared homosexual acts to be intercourse against the order of nature with any man or woman, had also included the category of acts which go against the order of nature with any animal, thereby prohibiting carnal intercourse and levying a punishment for up to 10 years and the individual who engages in such an act shall also be liable for a fine.

Even in light of the Supreme Court's decision in Navtej Singh Johar vs Union of India, section 377 was only declared unconstitutional to the extent that it criminalizes consensual sexual conduct between adults of the same sex. Thereby upholding that carnal intercourse is deemed to be illegal under the ambit of the Indian Penal Code.

A Historical Overview of 377

Over the decades, there have been numerous cases which have declared the legitimacy and the legality of the law that has criminalized carnal intercourse in specific. We shall be looking at this in the article in three parts, including laws against bestiality, non-consensual acts and unnatural offences against a minor.

Bestiality

When one looks at bestiality, the law has barred it for two reasons. Firstly, it is against the order of nature, and second, the fact that through acts of bestiality, the two parts required for consent are not fulfilled. However, the debate extends to countless topics, including the basis for barring bestiality. Some argue that because an animal cannot give consent, the act should not be considered, and in others, where individuals raise legal conundrums, how slaughter of animals as a commodity can be allowed if an animal's consent is valued at such a degree.

Furthermore, the fact that this is against the innate nature of a man also raises concerns by adding to the legitimacy of the previous law; however, when looking at Supreme Court decisions for the same, the legitimacy of a provision against bestiality has been upheld time and again.

In the widely discussed case of Navtej Singh Johar vs Union Of India, as mentioned earlier, which had decriminalized sodomy, the Supreme Court held that provisions of Section 377 would continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality.

Even in the case Naz Foundation vs Government of Delhi, where consensual sexual acts were allowed, this did not decriminalize other aspects of the act. Instead, the fact that in the cases of minors as well as animals, their inability to give consent still validated the law. Non-consensual acts were automatically criminalized under the same law 377.

Non-Consensual acts
After the 2018 judgment, the act catered to non-consensual acts between two individuals. Furthermore, it has been used in acts where there has been sexual abuse. This aspect of the law was also brought out by the parties in the case of Naz Foundation vs The Union of India, where the learned ASG argued that the act had been generally used in cases of “sexual abuse or child abuse”.

This above act has also been used to protect non-consensual acts that take place between men or women or between transgender people, where people could be sentenced to up to 10 years in prison.

Minor Sexual abuse

In the two case studies mentioned earlier, the point against minor sexual abuse has been brought up time and again. In addition to that, a snippet by the law commission in their 172nd report has also acknowledged the stance of 377 to be a law related to sexual offences and had proposed reforms for it in order to ensure better laws in case of child abuse.

However, in the case of Sakshi vs the Union of India, the supreme court of India was under the impression that section 354 of the IPC would be more appropriate when it comes to acts where penetration of a finger or any inanimate object into the vagina or anus is committed against a woman or a female child as well as for a male child. Therefore, even though the provision is used in cases of child sexual abuse, other provisions are much more suitable in the penal code.

Alternative provisions provided by the law

The days of the penal code are long behind, and there is a need and necessity to see if such an outlook and perspective as awarded under section 377 of the Indian penal code is up-taken by the new legislature Bhartiya Nyaya Sanhita despite the fact that section 377 has been scraped off.

Bestiality

When it comes to laws that criminalize bestiality under the new legislation, none explicitly mention the same. Due to this, as of July 2024, there is the absence of a single law that explicitly caters to unnatural sexual offences between a man and an animal.

In its place, the union government has not enacted any progressive bills that ensure that animals who are victims of such acts are given justice. However, they have provided a clause under the BNS under a section 323 where the term unnatural, or any indication of bestiality, is not mentioned, but the criminalization of “whoever commits mischief by killing, poisoning, maiming or rendering useless any animal shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.” Furthermore, efforts by PETA to request the government to bring more stringent laws on the matter failed.

Non-consensual offences

When it comes to non-consensual offences, especially in the case of rape of men, apart from seeking appeal under clauses like 114 or 115, which pertain to grievous hurt, there is no explicit clause that mentions acts that go against the nature of men or acts like non-consensual sex between two men.

Minor sexual abuse
In the BNS, there are ample and more efficient provisions against minor sexual abuse. This can be seen in the law, which adds a new chapter regarding offences against women and children. For example, changes like changing the wording of the law, like in clause 96 from the minor girl as given in IPC Section 366 A to the child to cover all children under the age of 18, shows a more gender-neutral approach when it comes to children. Furthermore, when it comes to rape, all sections of POCSO will be invoked if a rape is committed on a minor according to the latest law.

Conclusion
Whilst section 377 has been partially struck down in the overruled Indian penal code, it used to govern nonconsensual acts, acts against minors as well as acts of bestiality. However, with the introduction of the Bhartiya Nyaya Sanhita the absence of an explicit laws regarding the same has created a void in the legal landscape.

This results in non-consensual acts in general not being addressed. This has led to a widespread perception that rape is a non-consensual act in and of itself, and that a person cannot be found guilty of it unless they are a woman while the perpetrator is supposed to be a male. This has resulted in a growing divide regarding acts committed in unusual ways, such as acts against animals.

Award Winning Article Is Written By: Ms.Sania

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