Section 377 IPC and Unnatural Offences: Constitutionality and the BNS Position

Section 377 of the Indian Penal Code, 1860, criminalised carnal intercourse against the order of nature. For over a century and a half, it made same-sex intimacy a crime, along with other conduct such as bestiality and non-consensual anal or oral sex. The provision was a colonial import, drawn from the English Buggery Act of 1533 through the drafting of Lord Macaulay. It was struck down, in its application to consensual adult same-sex conduct, by the Supreme Court in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. The Bharatiya Nyaya Sanhita, 2023, has taken the further step of omitting Section 377 entirely, leaving a doctrinal gap that the Supreme Court has since remarked upon. This module walks through the historical origin of the offence, the constitutional litigation from Naz Foundation through Suresh Kumar Koushal to Navtej Johar, the present position under the BNS, and the ongoing debate about the lacuna the omission has created.

1. Introduction

Section 377 IPC in Indian criminal law

Section 377 IPC was one of the longest surviving colonial provisions in Indian criminal law. Enacted in 1860 as part of Lord Macaulay's Indian Penal Code, it criminalised carnal intercourse against the order of nature. For over a century and a half, the section was read to cover consensual same-sex intimacy, along with sodomy, bestiality, and other forms of sexual conduct considered unnatural in the Victorian moral framework in which the IPC was drafted. Its use in modern times, however, was often not for the prosecution of the classical categories but as a tool to harass and intimidate members of the LGBTQ community.

The three categories it covered

The reform trajectory

The reform of Section 377 has proceeded in stages. First, the Delhi High Court in Naz Foundation (2009) read down the section to exclude consensual adult conduct. Second, the Supreme Court in Suresh Kumar Koushal (2013) reversed the Delhi High Court. Third, the Supreme Court in NALSA (2014) recognised transgender rights, and in Puttaswamy (2017) recognised the right to privacy as a fundamental right. Fourth, the Supreme Court in Navtej Johar (2018), on a review of the Suresh Kumar Koushal position, unanimously read down Section 377 to exclude consensual adult conduct. Finally, the Bharatiya Nyaya Sanhita, 2023, omits Section 377 entirely, leaving a lacuna that has been noted by the Supreme Court.

2. Historical Origin

The Buggery Act, 1533

Section 377 IPC has its origin in the English Buggery Act of 1533, enacted during the reign of King Henry VIII. The Act criminalised the abominable vice of buggery, punishing it with death. The Act was part of a wider legislative movement transferring jurisdiction over sexual conduct from the ecclesiastical courts to the common law courts, and reflected the medieval theological view of sodomy as a sin against nature.

The Offences Against the Person Act, 1861

The Buggery Act was replaced in England by the Offences Against the Person Act, 1861, which retained the criminalisation of buggery but reduced the punishment from death to life imprisonment. The offence remained in the English criminal law until it was progressively decriminalised, first by the Sexual Offences Act, 1967 (in relation to consensual adult conduct in private), and further by subsequent statutes.

Macaulay's IPC and Section 377

Lord Macaulay drafted the Indian Penal Code in 1834, and Section 377 was among the provisions borrowed from the English legal tradition. The section was framed in general terms, using the phrase carnal intercourse against the order of nature to cover a range of conduct considered morally and legally problematic in the mid nineteenth century English framework. The section came into force in 1860 and remained substantially unchanged until 2018.

The colonial imprint on Indian sexuality law

Section 377 is often described as the most enduring colonial imprint on Indian sexuality law. Pre-colonial Indian legal traditions had a more varied and often more permissive approach to same-sex conduct. The imposition of the English framework, with its Christian moral background, was a distinctively colonial project. This is a point the Supreme Court in Navtej Johar acknowledged, noting that the section was foreign to the Indian legal tradition and reflected Victorian rather than Indian values.

3. Section 377 IPC: Text and Scope

The text of the provision

The three categories of unnatural offences

Judicial interpretation of the section identified three categories of conduct as falling within it:

• Sodomy: peno-anal penetration between men, or between a man and a woman. This was the primary target of the section as originally understood.
• Bestiality: sexual conduct with animals. The section explicitly covered animal as one of the objects of the offence.
• Other acts against the order of nature: peno-oral penetration and, in some cases, other conduct interpreted as unnatural by the courts of the day.

Meaning of carnal intercourse against the order of nature

The phrase carnal intercourse against the order of nature was not defined in the section itself. Judicial interpretation had built up a body of doctrine, primarily through nineteenth and early twentieth century English and Indian cases. The core notion was that any form of sexual penetration that could not lead to procreation was unnatural. This included peno-anal, peno-oral, and inter-species penetration. Peno-vaginal penetration was presumed to be natural and did not fall within the section (except in cases of rape, which had its own provision).

4. Naz Foundation v. Government of NCT of Delhi (2009)

The Delhi High Court's reading down

Constitutional grounds

• Article 21: right to life and personal liberty. The section violated the right to privacy, dignity and autonomy of consenting adults.
• Article 14: equality before the law. The section imposed differential treatment on consenting adults engaging in same sex conduct without a rational basis.
• Article 15: prohibition of discrimination on grounds of sex. Sexual orientation was held to be a facet of sex.

The immediate effect

The Naz Foundation judgment came into effect immediately in Delhi. Its status in other states was contested. Prosecutions under Section 377 for consensual adult conduct effectively ceased in Delhi and, in practice, in much of India. The judgment was widely celebrated as a landmark in the recognition of LGBTQ rights.

5. Suresh Kumar Koushal v. Naz Foundation (2013)

The Supreme Court's reversal

The reasoning of the two judge Bench

The Supreme Court's reasoning rested on three main propositions:

• The Delhi High Court had, in the Court's view, relied excessively on international law and academic writing rather than on Indian precedent.
• The presumption of constitutionality favoured Section 377, and the burden of showing its unconstitutionality was heavy and not discharged.
• The remedy for outdated or oppressive laws lay with Parliament, not with judicial reinterpretation.

Public reaction and consequences

The judgment was received with widespread public criticism. Human rights organisations, legal academics, and the LGBTQ community across the country expressed alarm. Curative petitions were filed, and eventually the case was referred to a larger Constitution Bench, which culminated in the Navtej Johar judgment.

6. NALSA v. Union of India (2014)

7. Puttaswamy v. Union of India (2017)

8. Navtej Singh Johar v. Union of India (2018)

The five judge Constitution Bench

Constitutional grounds: Articles 14, 15, 19, 21

The manifest arbitrariness doctrine

Justice R. F. Nariman, in his separate opinion, emphasised that Section 377 was manifestly arbitrary. The doctrine of manifest arbitrariness, developed in Shayara Bano v. Union of India (2017) and elsewhere, holds that a law violates Article 14 not merely if it is discriminatory but if it is capricious, irrational or excessive. Section 377, applied to consensual adult conduct, was found to be all three.

Right to sexual autonomy

Justice D. Y. Chandrachud, in his concurring opinion, elaborated the right to sexual autonomy as a facet of the right to privacy. The Court held that the right to choose one's partner, and the right to engage in sexual conduct with a consenting adult, are fundamental. The state may not intrude on this domain without compelling justification, and moral disapproval alone is not compelling.

9. What Was Decriminalised and What Remained

Navtej Johar did not strike down Section 377 in its entirety. It read the section down to exclude consensual adult conduct. Non-consensual acts, acts with minors (covered by POCSO), and bestiality remained within the section's scope. This partial reading down was consistent with the Court's role of preserving the state's legitimate interest in protecting the vulnerable and preventing harm.

10. The BNS 2023: Section 377 Omitted

The legislative choice

The Bharatiya Nyaya Sanhita, 2023, does not include Section 377 or any equivalent provision. The offence of unnatural offences, as it existed in the IPC, has been omitted entirely. The BNS covers rape (Section 63), sexual offences against children (through the POCSO Act, which remains in force), and offences against women (Sections 74 to 79). But there is no specific provision on peno-anal or peno-oral penetration between men without consent, no provision on bestiality, and no successor to Section 377 in any form.

The lacuna created

The Supreme Court's 2024 flag

The Supreme Court, in several observations in 2024, has flagged the lacuna created by the omission. In a case involving non-consensual same sex conduct, the Court observed that the omission of Section 377 creates a gap that Parliament should reconsider. The Court did not, however, itself supply a remedy, noting that the choice of criminal law provisions lies with the legislature. The lacuna is thus known but has not yet been legislatively closed.

11. Supriyo v. Union of India (2023): Same Sex Marriage

12. Consolidated Landmark Judgments

• Naz Foundation v. Government of NCT of Delhi, (2009) 111 DRJ 1 (Del). Delhi High Court reads down Section 377 for consenting adult conduct.
• Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. Supreme Court reverses Delhi High Court. Later overruled.
• National Legal Services Authority v. Union of India, (2014) 5 SCC 438. NALSA. Recognition of transgender rights and third gender.
• Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1. Right to privacy as fundamental right. Foundation for Navtej Johar.
• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. Section 377 read down for consensual adult conduct. Unanimous five judge Constitution Bench.
• Supriyo v. Union of India, (2023) SCC OnLine SC 1348. Same sex marriage. Not yet recognised; matter for Parliament.
• Shayara Bano v. Union of India, (2017) 9 SCC 1. Manifest arbitrariness doctrine applied to triple talaq. Framework used in Navtej Johar.
• Common Cause v. Union of India, (2018) 5 SCC 1. Right to die with dignity. Right to autonomy under Article 21.
• Deepika Singh v. Central Administrative Tribunal, (2023) 13 SCC 1. Family in law of India includes chosen family and same sex relationships.
• Government of NCT of Delhi v. Union of India, (2023). Various judgments on the interaction between the BNS omission and existing case law.
• Buggery Act, 1533. English foundation of Section 377.
• R. v. Bourne, (1938) 3 All ER 615. English case on the interpretation of unnatural offences.

Frequently Asked Questions

What did Section 377 IPC criminalise?

Section 377 IPC criminalised carnal intercourse against the order of nature. It was interpreted by the courts to cover three categories: sodomy (peno-anal penetration, whether consensual or not), bestiality (sexual conduct with animals), and other unnatural acts (including peno-oral penetration). It carried punishment of imprisonment for life, or imprisonment of either description up to ten years, and fine. The provision dates from Macaulay's IPC of 1860 and traces to the English Buggery Act of 1533.

What did Navtej Singh Johar v Union of India (2018) decide?

A five judge Constitution Bench of the Supreme Court unanimously held that Section 377 IPC, insofar as it criminalised consensual sexual conduct between adults in private, was unconstitutional. The Court struck down that portion on grounds of Articles 14, 15, 19 and 21 of the Constitution. The judgment expressly overruled Suresh Kumar Koushal v Naz Foundation (2013). Sexual orientation was held to be a facet of sex under Article 15, and sexual autonomy was recognised as a facet of the right to privacy under Article 21.

Is Section 377 IPC still in force?

No. The Bharatiya Nyaya Sanhita, 2023, has replaced the Indian Penal Code and has omitted Section 377 entirely. There is no successor to Section 377 in the BNS. Consensual adult conduct, which was already decriminalised by Navtej Johar (2018), is not an offence. Non-consensual same sex conduct and bestiality, which were still covered by Section 377 IPC after Navtej Johar, are no longer covered by any specific provision in the BNS. This has been noted as a lacuna.

What is the lacuna created by the BNS omission of Section 377?

Three specific categories of conduct no longer have specific criminal law coverage: (i) non-consensual peno-anal or peno-oral penetration between adult males; (ii) bestiality; and (iii) some non-consensual acts against women that were traditionally prosecuted under Section 377 as a residual provision. The Supreme Court in 2024 has flagged this lacuna and urged Parliament to consider corrective legislation. As of the BNS's coming into force, the gap remains open.

What was Suresh Kumar Koushal v Naz Foundation (2013)?

A two judge Bench of the Supreme Court, in December 2013, reversed the Delhi High Court's judgment in Naz Foundation. The Supreme Court held that Section 377 IPC was constitutional and could not be read down. The judgment was widely criticised. It was expressly overruled by Navtej Singh Johar v Union of India (2018).

Does Navtej Johar cover same sex marriage?

No. Navtej Johar decriminalised consensual same sex conduct between adults. It did not recognise a right to marry same sex partners. The question of same sex marriage was considered by the Supreme Court in Supriyo v Union of India (2023). The five judge Bench, by a majority, declined to recognise same sex marriage, holding that this is a matter for Parliament. The Chief Justice, in a partial dissent, would have recognised a right to civil union.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Sexual Offences Against Women under BNS: the framework for offences against women in Chapter V.
• Rape under Section 63 BNS: the substantive definition of rape and its aggravated forms.
• Rights of the Accused: constitutional protections including Article 21 privacy and autonomy.
• Presumption of Innocence: the doctrine that applied throughout the Naz Foundation to Navtej Johar litigation.