This article has been written by Rohaan Thyagaraju from Symbiosis Law School

Introduction

Investigating unnatural offences, as described in Section 377 of the Indian Penal Code, presents a confusing narrative in the rich needlework of India’s legal framework. Intended initially to condemn sexual protests deemed in contradiction to the call for nature, this legal arrangement has taken an exceptional turn, primarily affecting the LGBTQ+ community group.

Today, to curb the LBTQ+ population, society has marched down a detrimental path by embracing conversion therapy, which involves the use of harsh mechanisms to convert them back into heterosexuals. The confluence of regulation and cultural discernment has been demonstrated in landmark judgments. This article paves the ground for examining the legal nuances and cultural variables that have shaped the conversation around unnatural offences in India.

Legal Perspective- Indian Penal Code

As per Section 377 of the Indian Penal Code, whosoever has carnal intercourse voluntarily with a man, woman, or animal that goes against the course or order of nature shall be punished either with life imprisonment or with a description in prison ranging up to 10 years.

The unnatural offence is an umbrella term for any sexual act done by two adults that conflicts with the laws of nature. It naturally talks about the guidelines for organ and penetration, which adequately express that the offence has been sustained. The vast angle is that consent is insignificant. This implies that it will not be thought of, and the person who gives permission will likewise be considered to have abetted this wrongdoing and be rebuffed.

According to the clarification given in this segment, penetration is adequate to comprise sexual intercourse. As evident from the language, consent is utterly irrelevant for unnatural offences, and the party consenting would be similarly responsible as an abettor.

What is Unnatural?

To determine what is unnatural, the Court has established that each organ in the body has a specific capability to perform. At the point when that capability conflicts with the conventional game plan, then that is supposed to be unnatural.

An unnatural offence occurs when any function other than the biological one occurs. In other words, any sexual act other than penile-vaginal intercourse is thought to be unnatural in this setting, and any other intercourse is thought to be implicated in this gambit. The war is only getting started.

Nonetheless, consent is unimportant in this offence, implying that regardless of whether the adults have indulged in such a sexual act with shared permission, that would be void. They would be expected to take responsibility for the wrongdoing of an unnatural offence.

Khanu versus Emperor ( AIR 1925, Sind 286)

In this case, the Court held that the regular object of sexual intercourse is that there ought to be the chance of the origination of people, which, on account of sex, by penetration of a penis in the mouth is unthinkable.

State of Kerala versus K. Govindan (1969 CrLJ 818)

In this case, the inquiry that surfaced for thought was whether the demonstration of embedding the male sexual organ between the thighs of another is an unnatural offence under Section 377 of the Indian Penal Code.

The Kerala High Court held that placing a male organ into the victim’s body part, which was a drive demonstration of sex to fulfil the sexual craving, would be a demonstration culpable under Segment 377, IPC.

LQBTQ+ in India

The LGBTQ+ community in India has a long and complicated history, marked by both obstacles and growth. Despite having one of the world’s most experienced recorded same-sex partnerships and a rich history of orientation and sexual diversity in historical texts, the country has had a troubled relationship with its LGBTQ+ inhabitants in recent times.

Conversion Therapy

As the pride month of 2023 reaches its culmination, let us not forget to reminisce about the strides this community has made. One of the highlights is the judgment by the Madras High Court, which has illegalized the detestable”LGBT conversion therapy” that tortured countless victims in the name of treatment.

Though its working is now illegal, many are unaware of the pain inflicted upon them. Eminent experts have, since time immemorial, explored the stance of conversion therapy practised by doctors in the current legal system of India. Further, widespread protests have occurred on the need for this practice to be penalized, and it will critically analyze the penalization and its impact on Indian society.

Real-life Victims

For instance, Anjana’s soul wanders to Goa, where she is physically tortured and forced into conversion therapy by her family for months after informing them about her sexual orientation as bisexual. Moreover, the final Facebook video that she uploaded exposed her mental health issues, of which suicidal thoughts were not an exception.

The country woke up that morning with the awful news about this 21-year-old who had died by suicide. Anjana’s story is not a standalone incident, as countless individuals from the LGBT community claim to have encountered this dreadful therapy, which cosmic healers are extensively practising.

Exposing LGTBQ Conversion therapy

Conversion therapy is a modern-day practice that aims to alter the sexual orientation of an individual from homosexuality to heterosexuality. This dreadful practice has been denounced by medical practitioners and termed highly unethical due to two reasons.

Firstly, it is done assuming homosexuality is a “mental illness,” even though there is no scientific evidence for the same. Secondly, various instances highlight the usage of electric shocks in the course of this so-called treatment to cure them, which is violative of human rights and fundamental rights.

Perhaps this conversion therapy includes a wide range of activities, be they verbal and emotional abuse, religious counselling, or physical and sexual assault. While criminalization of this therapy is necessary, a key challenge would be ensuring that consistency with human rights principles is maintained.

The Legality of Conversion Therapy

The usage of such therapy by doctors can attract only civil liability, which is a form of legal liability whereby compensation is to be paid in terms of money under medical negligence, as doctors must decide whether they should take this case. Medical practitioners leverage this opportunity since it is just monetary compensation without involving penalization through prison.

The Turning Point

The essential dispute erupted in 2010 by the Naz Foundation vs. the NCT of Union Territory of Delhi, wherein they contended that covering the consensual intercourse between two adults that is finished in private is violative of the principal privileges, which are the fundamental rights cherished in the development of India under Articles 14, 15, 19, and 21 of the Constitution.

The Foundation argued that Section 377 mirrors an old-fashioned comprehension of the reason for sex, specifically for multiplication, and is not welcome in present-day culture. Further, the police had weaponised the arrangement, which hindered endeavours and pointed toward forestalling the spread of HIV/AIDS.

The Foundation referred to an occurrence in 2001 in Lucknow where HIV avoidance labourers who were conveying condoms to gay men were captured on the charge that they were conspiring to commit an offence. The Naz Foundation also additionally contended that the arrangement was being abused to rebuff consensual sex acts that are not penile-vaginal.

Section 377- Partly Struck Down (2010)

Hence, these petitioners were strident in their endeavour to strike down such areas. In any case, the Court proclaimed that the applicants were legitimate in their cases, so they chose to strike segment 377’s one section, which condemned consensual intercourse between two adults in private.

This aspect is a reprieve for a few people across India. The Court held that ordering and focusing on gay people disregards the equivalent insurance ensured under Article 14 of the Constitution. Area 377, in this way, abused human respect, which shapes the centre of the Indian Constitution.

Notwithstanding, it was not soon enough for the Delhi High Court to confront Flak because of its judgment. Soon, fights ejected, expressing that this would now have a searing assault on the Foundation of marriage and would draw youth towards homosexual exercises.

A Major Setback to Delhi HC Judgment(2014)

In 2014, the milestone instance of Suresh Kumar Kaushal Others vs. The Naz Foundation became the most critical factor. In this situation, the Supreme Court of India overruled the judgment of the Delhi High Court, which proclaimed Section 377 of the IPC unconstitutional. Here, the Court expressed that each piece of legislation established by the Parliament or State Council conveys an assumption of defendability.

If no revision is made to a specific code, it is likely that the state considers it fit and leaves the law. Thus, the Court eventually proclaimed Section 377 to be intrinsically legitimate. Notwithstanding, the Court left it open for the governing body to eliminate or alter the law.

The Landmark Judgement(2018)

In 2018, the Navtej Singh Johar and others versus Association of India’s verdict was pronounced [(2018) 10 SCC 1]. For this situation, a five-bench seat of the High Court, to some extent, struck down Segment 377 of the Indian Punitive Code, which made “sexual intercourse against the nature request” a criminal offence.

The Court proclaimed that to the extent that Part 377 condemns consensual sexual demonstrations of grown-ups (for example, people over the age of 18 who are skilled to assent) in private, it is violative of Articles 14, 15, 19, and 21 of the Constitution. In any case, it is explained that such permission should be free, totally willful, and without any pressure or compulsion.

Recent Developments (2023)

On the 16th of October,2023, a five-judge panel with Chief Justice DY in charge was convened to pronounce the verdict on same-sex marriage. The bench ruled 3-2 against non-heterosexual civil partnerships and same-sex marriage. Judges Bhat, Kohli, and Narasimha led most of the Court to Court these rights. Among the minority were Justice Kaul and Chief Justice Chandrachud.

Later, they remarked that the Indian Parliament should deal with such a judgment, and the CJI had refused to participate in “judicial lawmaking” on same-sex marriage while acknowledging that the state discriminates against the LGBTQ population in its verdict. Additionally, it voted against granting adoption rights to unmarried homosexual couples.

LGTBQ Laws at The Behest of Religion

Undeniably, the saying “The poor suffer the most from the law” holds. However, let us not forget that religion is at the forefront. A possible ramification that can be foreseen from such criminalization is the backlash from religious communities.

In Anjana’s case, the de-addiction centres were being run by religious minorities, which might have given religious backing to their doctors practising conversion therapy. Let us not fail to comprehend that religious freedom is necessary but not that which harms innocents. Such laws in religious texts must be restricted; therefore, the state’s intervention is pivotal.

The case differs in India, as India has a Hindu majority (80%). The holy scripts and ancient texts—the mythology of the Vedas and Kamasutra in Hinduism—indicate the acceptance of homosexuality. Hence, in India, the opposition to criminalizing conversion therapy will never be on similar grounds as that of the West.

The Current Scenario in India

Though there is still more to be done, the LGBTQ+ community in India has made great strides in recognition and perception since about 2010. Those who identify as LGBTQ+ lack legitimate protections and liberties, and many of them encounter bigotry and brutality.

Despite these obstacles, India’s LGBTQ+ community is strong and will keep fighting for recognition and rights. With events like the Eccentric Pride March in Mumbai and campaigns like the Humsafar Trust and the Naz Foundation, India’s LGBTQ+ community is growing and representing significant areas of strength for civil rights.

In India, society needs to acknowledge, accept, and uplift the voices of the LGBTQ+ community. We must also work to create a society in which everyone may live openly and freely without fear of violence or prejudice. We can help the LGBTQ+ community in India have a brighter and more inclusive future by raising awareness, promoting action, and advocating for change.

Recommendations

Decriminalizing homosexuality in the Navtej Singh Johar case was only one step in moving toward LGBTQ equality and acceptance in India. The practice of conversion therapy seems to be a direct antithesis that prevails even after being condemned explicitly by international bodies like the Indian Psychiatric Society, which paves the way for a stricter penal regime to resolve such issues.

Conversion therapy should be abolished entirely, as it enhances the stigma attached to homosexuality and compounds their perception of discrimination. It throws a light on the dangerous practice of conversion therapy being practised in India even after homosexuality has been decriminalized

Conclusion

Finally, substantial changes have happened in the judicial procedure in India addressing unnatural offences, as described by Section 377 of the Indian Penal Code—initially, any sexual demonstration regarded as contrary to the nature of the request required assent. Over time, landmark cases such as the Naz Establishment and Suresh Kumar Kaushal have shaped the conversation.

The historic Navtej Singh Johar ruling, which recognized their constitutional rights, made consensual adult same-sex partnerships legal in 2018. This is obvious in a dynamic posture emphasizing individual independence and equal legal insurance while testing cultural standards. However, society must move from a rigorous interpretation to a more inclusive, rights-oriented understanding, demonstrating societal progress as acts such as conversion therapy only deteriorate the country.