Bestiality and Section 377 IPC

The law of Bestiality and Section 377 IPC

Recent Controversies

Recently the issue of Criminality associated with the Carnal Intercourse came up after the decision of Supreme Court of India (CIVIL APPEAL NO.10972 OF 2013) in Naz Foundation Case. Earlier in Delhi High Court,Naz Foundation claimed that the existence of Section 377 prevented the LGBT (Lesbian, Gay, bisexual and Transgender) community in coming out in open about their sexual orientations and this affected their work of HIV/AIDS prevention efforts. Thus they carved out a case under the scheme of Public Interest Litigation. It wanted the Section 377 IPC to be struck down on the issue of Constitutionality. According to them, the persons commonly known as Gay or Lesbian try to hide their sexual orientation due to criminality associated with Carnal Intercourse. It was stated that they were subjected to abuse, harassment, assault from public and public authorities Since they also have right to live wholesome life as any other person with Heterosexual orientation, their fundamental right gets affected if Section 377 IPC remains on statue book. Reading down the offending Statue, Delhi High Court agreed with this reasoning and declared that till the Legislature took corrective steps, the Carnal Intercourse between two consenting Adults shall not be an offence under Section 377 IPC. The Supreme Court on the other hand held that the Constitutionality of Section 377 IPC was well established. Once the constitutionality was established, the need for continued labeling of a particular activity as an offence was to be revisited by legislature only. Secondly the Courts cannot carve out a meaning of the words which the legislature never intended. The Supreme Court also noted that every time this Section was earlier tested it was a case where there was no valid consent or the act was forced on the victim.

Now the Congress Party Chief Madam Sonia Gandhi reported (on December 13, 2013) to have said, “I am disappointed that the Supreme Court has reversed a Delhi High Court Ruling.  The high Court had wisely removed an archaic ,repressive and unjust law that infringed on the basic human rights enshrined in our constitution. I hope Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens.”The BJP was non-committal so far and wanted that they would like to see the draft amendment first before giving their views. The Samjwadi Party has termed the Homosexuality as unethical and immoral and pledged to oppose any amendment to Section 377 IPC. Left has however termed the restoration of Section 377 IPC as retrograde. Thus there is no consensus on the issue and any amendment proposed by Government to Section 377 IPC will have to face tough opposition. Considering that the General Elections are due in next few months, the present government may not venture amending the Code.

The offending Section

Before we proceed further, we examine what exactly are the contents of this offending Section. The Section starts with Gender Neutral Statement for offenders, “Whoever, voluntarily has Carnal Intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life ……..  . Thus the Section is equally applicable to all persons, irrespective of their sex or sexual orientations.  By the plain language of the Section ,no class is created or discriminated. Secondly it is not the Criminal intent or state of mind which is punishable but the act of voluntary carnal intercourse. Sexual orientation of the accused is not material. A normally heterosexual person also is equally liable if he or she commits the prohibited act. Being normally heterosexual  will not be a defence at all. On the other hand a Gay or Lesbian cannot be punished under this section unless they voluntarily commit the act of Carnal intercourse. As regards the Carnal intercourse by a Man with a woman is concerned, it is now extensively covered with the recent modifications in the Rape Laws. Rape committed in certain circumstances is now also punishable with Death or imprisonment for rest of the natural life of convict. . However the Rape law is still Gender specific. The offender is necessarily a person of male sex even though the non-penile insertions are also covered. The victim is necessarily a woman.  It does not criminalise any ‘rape’ of woman by woman or ‘rape’ of man by woman. At the same time  the act of penile/anal intercourse between husband and wife,  the wife not below the age of Fifteen is not be covered in the definition of rape as it is specifically excluded by Exception(2) of the definition of Rape  in Section 375 IPC To cover such acts , ( as one recently reported on December 13, 2013, relating to ordeal of a newly-wed at Bangkok by her husband)continuation of Section 377 IPC is necessary. Presence or absence of consent is important element of the offence of Rape. The issue of valid consent is therefore covered in detail under the definition of Rape.

On the other hand the Section 377 IPC is not concerned with Consent. Act perse is punishable, consent or no consent. As regards animals are concerned we may broadly presume that question of consent does not arise. Firstly because it is very difficult to assess if they have consented. Secondly the Human beings in any case carry out their plans of killing them for food, maiming and poisoning them for laboratory experiments, confining them and keeping them hungry to train them fro specific tasks and even making them mate as per their requirements. We don’t ask their wish. So even if we wish to keep out consenting Adults out of the mischief of section 377 IPC, the issue of consent is immaterial in case of Carnal Intercourse with Animals.

Grounds for consideration

While the Reported cases of Human –Animal Carnal Intercourse are only few from our own country(Supreme Court quoted case of Khandu v. Emperor 35 Cri LJ 1096 : (AIR 1934 Lah 261)-"Carnal intercourse with a bullock through nose is an unnatural offence punishable underSection 377,Penal Code) , a number of such incidents are reported from other countries. In many of these cases the offenders had suffered physical injuries to their private parts or other organs depending on exposure. Some other cases came to light because some entrepreneur saw big money in establishing animal farms where the animals were kept and trained to satisfy the sexual urges of humans. In all the cases, such intercourse was not appreciated by local society.

The act of Carnal intercourse with animals is prohibited by most of the religions. Holy Bible specially ordains,”Leviticus 18:23 New International Version (NIV) “‘Do not have sexual relations with an animal and defile yourself with it. A woman must not present herself to an animal to have sexual relations with it; that is a perversion.” In Muslim countries the act of Sodomy is a crime in most of the jurisdictions. Some sodomy laws, particularly in Middle Eastern countries and those jurisdictions observing Shariah law, provide penalties as severe as life imprisonment for homosexual intercourse, even if the act is between legally consenting adults. Earlier Hindu scriptures did not specifically prohibit Bestiality but later Penal Codes like Vishnu_Smriti provided stringent punishment for such conduct.

Even on health ground, sex with animals could not be supported as it may act as conduit for transfer of diseases from animal species to humans.

While act of Sodomy has been decriminalized in many countries, the act of Bestiality continues to be punishable in most. In case of USA, the majority of states (about 33) have some provision that criminalize the engaging in sexual conduct with animals.

Let us now examine what Delhi High Court in its judgment ( WP(C) No.7455/2001 on JULY 2, 2009 ) said . It ordered that,

“We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 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. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion.”

Obviously the prescription of Delhi High Court did not cover the case of Sex with animals. The parliament did subsequently amend (Criminal Law Amendment Act 2013) the Rape Law (in light of Law Commission Report as also Justice JS Verma Committee Report after Nirbhaya Case) but chose not to touch Section 377 IPC.

In disposing off the Bunch of Special Leave Petitions filed to challenge the Delhi High Court Judgment, the Supreme Court said,

“The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable…” Further it held,

“After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.”

Need to revisit the Section 377 IPC

Ball is thus placed fairly and squarely in legislature’s field and rightly so. The 172nd Law Commission recommended deletion of Section 377 IPC, not because they found the provisions unconstitutional or unnecessary. They suggested inclusion of major portions of this section in their new definition of Rape which they renamed as Sexual Assault. They made the offence of sexual assault Gender neutral and included Carnal intercourse among humans within the definition of Sexual Assault. The Carnal intercourse with animal did not find place in their elaborate definition of sexual assault.

Now the issue before the Law-makers is two-fold. First to take a call on various permutations and combinations possible for replacing the words,” against the order of nature”, as with passage of time they no longer convey legally sound reasoning for prohibiting the act of carnal intercourse. May be these words could be replaced by specifying in detail the prohibited acts such as Man to Man Penile/Anal or non-penile/anal, Penile/mouth, Women to Women non-penile/vaginal/anal or Woman to Man non-penile/anal penetration. Secondly the Legislature must apply it self to the ground reality of existence of a class of persons whose sexual orientation is said to be in conflict with prescription of Section 377 IPC. In support of this class it is argued that such orientation is inherent at Birth itself and is immutable. On the other hand if this ground is conceded, the chances are that another class the so-called Zoophile will lay their claim to the decriminalization of act of Bestiality which also is covered by Section 377 IPC. This class of persons, it is claimed are born with inherent inclination to have sex with animals in preference to human beings. Where do we stop?  Or do we leave the matter as suggested by the 172nd Report of Law Commission,” We leave persons having carnal intercourse with any animal, to their just deserts.”

We must ask question to ourselves. Do we wish a society in which Animal Brothels spring-up to cater for the sexual hunger of Zoophile persons?  These Animal Farms or Clubs would keep animals such as Horses, Dogs, Lambs and the like for the pleasure of their  paying customers. Are we ready for a scenario where the acts of Carnal Intercourse with animals are committed with impunity, may be in public, because while deleting Section 377 from the Statue book we have forgotten to retain the punishment for Bestiality? This has already exactly happened in few countries while deleting the offence of Sodomy or Unnatural Offence and in most of them, the criminality was quickly restored with respect to the offence of Bestiality. In case we agree with the ruling given in the Naz Foundation case by Delhi High Court, then best course would be to reformulate the Section 377 so that it takes out the act of Sodomy between two consenting Adults but retains the criminality for other act of Carnal intercourse including Bestiality. It would not be proper to leave the matter of crime of bestiality, unattended as opined by the 172nd Report of Law Commission of India.

By Sharda Prasad

Advocate 

Supreme Court of India