NA and NC at loggerheads – lost in definition of S.213 and 214

It appeared in Kuensel on 29 February  2020

Last week, Kuensel reported that, “Two Houses at loggerheads over unnatural sex provisions”.  These loggerheads may have been caused by inability to balance the impacts of amending or retaining this provision. Section 213 states, “A defendant shall be guilty of the offence of unnatural sex, if the defendant engages in sodomy or any other sexual conduct that
is against the order of nature” and S.214 provides penalty for violation of S.213. The legislature may have overlooked the primary objectives of this provision including origin and possible repercussions of keeping the section or amending or repealing the section. However, in the current situation, the legislature seemed to have lost in defining what constitutes “unnatural sex” and “against the order of nature” and justifying their own definitions.  

There are two possible origins or concepts of S.213. The first one is from Indian law. There is a very similar provision  in S.377 of Indian Penal Code, 1860, which states “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”. A scholar wrote that, the S.377 is transplantation of a provision from “The Buggery Act 1533” of British Empire, enacted during the “reign of King Henry VIII”. The criminalisation of “sodomy, unnatural sex and against the order of nature” were reported to have moved by “the ecclesiastical courts to the state”. It was punishable by death. This may be because “Marriage is a gift of God in creation through which husband and wife may know the grace of God” in the eyes of ecclesiastical courts during that time in Britain. If this is the origin, then our laws just reflect the wishes of old British System. In India S.377 has been struck down as violative of fundamental rights by Supreme Court of India in 2018. 

Second origin may have been influenced by our own traditional beliefs derived from Buddhism. According to a senior Buddhist Scholar, natural sex means a sexual intercourse between a male and a female. Any other sexual conduct including sodomy would be considered as unnatural or against the order of nature. Therefore, if a monk (Gyedhuen) indulges in such act, it is believed that, he would have committed great sin. If same act is committed by common person (Gyetshuel),  he or she would still accumulate sins but lesser than a monk. 

However, with the modern development and rights of LGBT becoming more prominent, the definitions of “sodomy”, “unnatural sex” and “order of nature” have become a subject of debate in many countries. A scholar defined “natural” as “events that are normal and expected to occur naturally, if there is no artificial or man-made impediment to same”. By this definition, artificial insemination or even use of contraceptives may become amount to unnatural. Therefore, defining what is natural and unnatural does not solve the issue of NA and NC. 

The better solution will be a decision taken holistically. These may include the fundamental right to sexuality of an individual, the accepted national norms, culture and policies, the emerging global scenario and objectives of our criminal justice system. Otherwise, due to unnecessary social pressure from different groups of voters, our politicians may derail the very essence of issue.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.