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(This is a guest post by Vanshaj Jain).

That consensual sex between adults lies outside the scope of s.377 is now certain, per Navtej Singh Johar. What remains within the confines of the provision, however, is perilously unclear. To understand the conceptual imprecision that lies at the heart of this decision, it is necessary to understand how the normative content of Section 377 has changed since its ignominious birth.

Sections 375 and 377 were originally intended to cover two mutually exclusive categories of sexual acts. While s.375 covered “sexual intercourse”, s.377 infamously covered “carnal intercourse against the order of nature”. Though these terms were left intentionally imprecise, over time their meaning became conceptually dependant on each other. In Khanu v. Emperor, sexual intercourse was considered intercourse ‘in the order of nature’ with “the possibility of conception of human beings” and carnal intercourse against the order of nature was understood to cover all non-procreative sexual acts. Similarly, in Lohana Vasantlal Devchand, the content of s.377 was defined in opposition to s.375 by describing carnal intercourse against the order of nature as “an imitative act of sexual intercourse”. This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi v. Union of India, where ‘sexual intercourse’ in s.375 was restricted to penile-vaginal penetration, while all residual forms of intercourse (including “penile-oral penetration, penile-anal penetration, finger-vagina, finger-anal penetration and object-vaginal penetration”) were considered carnal intercourse against the order of nature under s.377. Thus defined, the relationship between the two provisions could be conceived as follows:

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However, the 2013 Criminal Law (Amendment) Act put an end to the watertight separation between these provisions. Section 375 was altered to include acts that earlier fell only within the domain of s.377, including oral sex, anal sex and penetration by objects. Coupled with these changes, the section ceased to describe the actus reus of rape as ‘sexual intercourse’. In fact, the marital rape exception to s.375 which earlier covered only ‘sexual intercourse’ was specifically amended to except “sexual intercourse or sexual acts”. As Sekhri and Mukhopadhyay argue, this ended the binary separation of ss.375 and 377 under ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’. Indeed, it would be strange if the Amendment Act continued to restrict s.375 to ‘sexual intercourse’ alone since it was based on the Justice Verma Committee Report, which expressly recommended removing s.377 and abolishing the ‘sexual intercourse’/‘carnal intercourse against the order of nature’ division. Consequently, following the 2013 Amendment, the relationship between the provisions could be conceived of as follows:

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It is this change in the conceptual interdependence of ss.375 and 377 that the Court seems to gloss over in Navtej Singh Johar. The opinions in Navtej erroneously presume that s.375 is still restricted only to ‘sexual intercourse’ and thus has no potential overlap with the actus reus of s.377. Per Chandrachud J., for instance, the 2013 Amendment shifts non-traditional male-on-female sexual acts [now covered in amended s.375(a)-(d)] from the category of ‘carnal intercourse against the order of nature’ to that of ‘sexual intercourse’. He reasons that:

…if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment…[m]any of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact.

This misconception is repeated in the opinions of the other judges, compelling them to believe that the 2013 Amendment implies that consensual non-traditional male-on-female sex is legal because it displaces such acts from s.377 to s.375, the latter having a consent requirement. As is argued above, the language of amended s.375 betrays that this cannot be its effect; instead such acts remain within the meaning of ‘carnal intercourse against the order of nature’ but are to be covered both by s.377 and s.375 (under the phrase “sexual acts” added by the amendment).

Further, to add to the confusion, the judges seem to ascribe the intention of decriminalizing all consensual sex between a man and a woman to the 2013 Amendment. Per Nariman J., for instance:

…the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution.

The basis for this conclusion is never made clear in the opinions in Navtej, and cannot be located within the text of the 2013 Amendment Act or the Justice Verma Committee Report. Indeed, it is strange to reason that merely because the actus reus of one provision (here: s.375) is expanded but made contingent on a consent requirement, the implication it carries is that the same act cannot be penalized under any other provision (here: s.377), even if it falls within its definitional parameters. This seems patently incorrect.

The second concern with the manner in which the decision addresses s.377 relates to the phrase ‘carnal intercourse against the order of nature’. The concurring opinions indicate that this phrase lacks clear content:

In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. [CJI]

At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? The simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content…[i]f it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid. [Chandrachud J.]

…the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended” [Malhotra J.]

While the reasoning is unimpeachable, the judges don’t seem to fully appreciate its consequence. The phrase ‘carnal intercourse against the order of nature’ forms the crux of s.377; it is the actus reus on which the crime is based. If its content is unclear, as the judges rightly point out, only two consequences can follow: either the Court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the Court does neither.

Instead, the Court reformulates the content of s.377 as follows:

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” [CJI]

 

The phrase “act of the description covered under Section 377” could, reasonably, only refer to ‘carnal intercourse against the order of nature’. Yet, by virtue of the pronouncements highlighted above, this phrase no longer carries any positive content, since the Court has, in no uncertain terms, departed from the tests laid down in Khanu and Lohana Devchand, without providing a new test of their own. This renders the residual content of s.377 uncertain. It could, potentially, be conceived of in three possible ways:

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Option A is the only one consistent with the Court’s statements on the unintelligibility of ‘carnal intercourse against the order of nature’. By undermining this phrase, it is conceivable that the Court wishes to put the divide between ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ to rest once and for all. Consequently, s.377 could be used to cover all non-consensual acts of sex (in addition to bestiality and paedophilia) that are not already covered by s.375 – this reinterpretation could raise the interesting possibility that marital rape and female-on-male rape are now subject to penal liability under s.377.

Option B indicates that s.375 and s.377 are not watertight categories; whereas s.375 criminalizes non-consensual male-on-female sexual intercourse and carnal intercourse (“sexual acts”), s.377 covers all remaining forms of non-consensual carnal intercourse. While this option best reflects the text of the 2013 Criminal Law (Amendment) Act, it isn’t consistent with the court’s reasoning on the 375-377 relationship. Option C allows for ss.375 and 377 to retain their independent character, the former applying only to ‘sexual intercourse’ while the latter covers only ‘carnal intercourse’, and best reflects the court’s description of their interaction. However, given the Court’s twin reasoning, first, on the unintelligibility of ‘carnal intercourse against the order of nature’ and its clear dicta that non-traditional forms of sex are not ‘unnatural’, and second, that the 2013 Amendment Act has shifted non-traditional forms of sex from ‘carnal intercourse’ to ‘sexual intercourse’, it is possible that, both under Options B and C, s.377 could no longer be used to cover non-traditional intercourse when done non-consensually, rendering the provision redundant (outside the context of bestiality and paedophilia). This would also have the bizarre outcome that even though male-on-male rape was criminalised earlier under s.377, by virtue of this decision it now carries no sanction (due to the gendered nature of s.375’s text). However, if the phrase ‘carnal intercourse’ does have any residual content, this would again raise the possibility, under Option B, of trying marital rape and female-on-male rape (when it entails such carnal intercourse) under s.377.

In conclusion, the normative content of s.377 is uncertain, and will, in all likelihood, require further clarification. What is clear, however, is that the judgment unfortunately glosses over the conceptual boundaries of a criminal law provision whose content it was called upon to decide.