Interestingly, the British in 1967 had decriminalised consensual homosexual acts done in private by men above 21 years of age. A five-judge Supreme Court bench in its 2018 judgment in Navtej Johar case had decriminalised consensual sexual relations in private among adult members of the LGBTQ community by reading down Section 377 of the IPC.
Not a single provision in BNS is similar to Section 377 of IPC, which says: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits unnatural offence”. This is erased from BNS, raising a question as to whether a man forcing himself on another man, either by coercion or using his position of superiority, would remain an offence or not.
Another question that emerges is – whether a man or woman committing bestiality would constitute an offence, which has been defined as intercourse against the order of nature.
In IPC, ‘unnatural sex’ finds mention in two more sections. Interestingly, the BNS retains those provisions without any change. Section 100, which provides for the right to private (self) defence, permits a person, who is being subjected to unnatural sex, to inflict injury or cause death of the assailant and that he would not be liable to be punished for the act to save himself from being sodomised. An identical provision now finds mention under Section 38 of the BNS.
Section 367(4) provides that a person, who kidnaps someone to satiate his “unnatural lust”, would be liable to be punished with a 10-year imprisonment. An identical provision is now under Section 138(4) of the BNS.
Did the 2018 SC Constitution bench judgment – the lead one being authored by Justice D Y Chandrachud – force a change in the NDA government’s mindset, even though it had left it to the wisdom of the apex court to decide decriminalisation of consensual same-sex relationships. among adults in private. However, during the hearing of the petitions demanding marriage rights for same-sex couples, the NDA government had opposed the concept tooth and nail and said it would be deleterious to the meaning of ‘family’.
Though the British had codified the penal law in 1860 through an exercise that lasted more than 20 years, the NDA government’s exercise is merely two to three year-old. Interestingly, in 1957, UK published the Wolfenden Committee Report, which recognised how the anti-sodomy laws had created an atmosphere for blackmail, harassment and violence against homosexuals.
Pursuant to this report, the House of Lords initiated legislation to de-criminalise homosexual acts done in private by consenting parties. The Sexual Offences Act, 1967 was passed in England which de-criminalised homosexual acts , provided the parties consented to it, and were above the age of 21. More than 125 countries have decriminalised same-sex relationships among consenting adults.
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