Unnatural Offences (Section 377 IPC) — Post-Navtej Singh Johar

Section 377 of the Indian Penal Code, 1860 (IPC) — the colonial-era "unnatural offences" provision — has had the most dramatic doctrinal arc of any provision in the entire Code. It was upheld in 2013, partially struck down in 2018 by a five-judge bench of the Supreme Court in Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, and then excluded altogether from the Bharatiya Nyaya Sanhita, 2023 (BNS) when the new code came into force on 1 July 2024. The omission is the single most consequential BNS choice in the field of Indian Penal Code and BNS framework on offences against the human body. What it leaves behind — and what it leaves unaddressed — is the subject of this chapter.

The text of Section 377 IPC read: "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." The Explanation added that penetration was sufficient to constitute carnal intercourse. The reach was therefore three-fold: same-sex acts between adults, opposite-sex acts not in the order of nature, and bestiality. Through the post-2009 round of constitutional litigation only the first category was decisively settled; the second and third remained doctrinally available until 1 July 2024, when the BNS dropped the entire section.

Statutory anchor and the Macaulay genealogy

Section 377 IPC came into force in 1862 with the rest of the Code. Its drafting was the work of Lord Macaulay's Law Commission, and it was modelled on the English Buggery Act of 1533 and its subsequent recasts. The provision sat in Chapter XVI of the IPC, immediately after the rape provisions, and was deliberately gender-neutral — "Whoever" rather than "a man". Both the perpetrator and the victim could be of any gender. The actus reus was "carnal intercourse against the order of nature", an undefined phrase that the colonial courts read narrowly (penile-anal and penile-oral intercourse) and the post-Independence courts read more broadly (including manipulation amounting to penetration). The mens rea was the voluntariness of the act.

The provision rested doctrinally on the Victorian morality of its era. In the post-1947 era, it was used overwhelmingly against same-sex conduct between consenting adults, with a much smaller charge-sheet load on non-consensual acts and bestiality. The disparity between text and use was the gap that the constitutional litigation eventually targeted.

Naz Foundation and the Delhi High Court

The first round of constitutional challenge ended in Naz Foundation v. Government of NCT of Delhi, 2010 Cr LJ 94 (Del). A Division Bench of the Delhi High Court (Chief Justice A. P. Shah and S. Muralidhar J.) declared Section 377 IPC unconstitutional insofar as it criminalised consensual sexual acts of adults in private, holding the provision violative of Articles 14, 15 and 21 of the Constitution. The Court read the right to privacy as integral to Article 21, the prohibition on discrimination on grounds of sex in Article 15 as covering sexual orientation, and the equality clause in Article 14 as requiring an intelligible differentia and rational nexus that the provision lacked. The reading-down operation left the provision intact for non-consensual acts and acts involving minors and animals.

Suresh Kumar Koushal — the reversal

The Naz position was reversed by a two-judge bench of the Supreme Court in Suresh Kumar Koushal v. NAZ Foundation, AIR 2014 SC 563. The Court held that those who engage in carnal intercourse "in the ordinary course" and those who engage "against the order of nature" constitute different classes; that the differentia was intelligible; and that the provision did not therefore suffer from the vice of arbitrariness. The Court added that the legislature was free to consider the desirability of repealing or amending the section. The decision restored Section 377 IPC to the statute book in full force and was widely criticised on doctrinal and constitutional grounds. The reasoning treated the small population of LGBTQ+ persons as constitutionally irrelevant — a phrase the Court used that the later Constitution Bench would expressly disapprove.

Navtej Singh Johar — the Constitution Bench

A five-judge Constitution Bench decided Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, in September 2018, and overruled Suresh Kumar Koushal. The unanimous Bench (Misra C.J., Khanwilkar, Nariman, Chandrachud and Indu Malhotra JJ., with four concurring opinions) held that Section 377 IPC, insofar as it criminalised consensual sexual conduct between adults of any gender combination in private, violated Articles 14, 15, 19(1)(a) and 21. The Court drew on its earlier ruling in K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1, recognising the right to privacy as a fundamental right inherent in Article 21, and on the dignity strand of Article 21 to find that consensual same-sex conduct was protected by the Constitution.

The Bench was careful to preserve three categories within Section 377 IPC. First, non-consensual carnal intercourse — irrespective of the sex of the parties — remained criminal. Second, carnal intercourse with a minor remained criminal and was anyway addressed by the POCSO Act. Third, carnal intercourse with an animal (bestiality) remained criminal. The reading-down operation was surgical, not wholesale. The text of Section 377 IPC continued in the statute book; only its application to consensual adult conduct was excised.

Section 375 not subject to Section 377

An important sub-issue settled in Navtej was the relationship between Section 375 IPC and Section 377 IPC. The Court held that Section 375 IPC, as substituted by the Criminal Law (Amendment) Act, 2013, did not contain the words "subject to any other provision of the IPC" and therefore was not subordinated to Section 377. The four-limb actus reus of Section 375 IPC included acts that would also have fallen within Section 377 IPC, but where the survivor was a woman the prosecution was to be brought under Section 375 IPC and not under Section 377. The point matters because Section 375 IPC carried the post-2013 affirmative-consent standard and the more elaborate procedural protections that Section 377 lacked. The reasoning carries into the BNS framework where the analogue of Section 375 IPC is now Section 63 BNS on rape.

The BNS gap — Section 377 not carried over

The BNS, when it came into force on 1 July 2024, did not include any equivalent of Section 377 IPC. The drafting committee chose to drop the provision in its entirety rather than retain a residual rump for non-consensual same-sex acts and bestiality. The Standing Committee on Home Affairs that examined the Bharatiya Nyaya Sanhita Bill, 2023, had recommended retention of the residual rump, but the recommendation was not accepted. The result is a doctrinal gap: an act of non-consensual sodomy on an adult male or transgender person, where the act would not fall within Section 63 BNS (which requires the victim to be a woman), is not directly criminalised by any specific provision of the BNS.

The omission has been criticised by women's-rights organisations, LGBTQ+ groups, the Bar Council of India's standing committee on legal reform, and several retired Supreme Court judges. The Madras High Court in S. Sushma v. Commissioner of Police, the Delhi High Court in subsequent litigation, and a clutch of writ petitions filed in the Supreme Court in late 2024 have raised the question. The Supreme Court has tagged the issue with the marital-rape reference for hearing. As of the time of writing, the gap remains.

Implications for non-consensual carnal acts

The doctrinal gap has practical implications for several fact patterns. Non-consensual sodomy on an adult male is now charged under Section 130 BNS on grievous criminal force read with the medical-examination provisions of the BNSS. Non-consensual sodomy on a transgender person is similarly charged. Non-consensual oral or anal intercourse on an adult woman remains within Section 63 BNS — that piece of the field is intact because Section 63 BNS adopts the four-limb definition of penetrative acts that Section 375 IPC had introduced in 2013. Bestiality is now prosecuted under the Prevention of Cruelty to Animals Act, 1960, with much milder penalties than the former Section 377 IPC carried.

The result is a sentencing disparity that has drawn judicial concern. A non-consensual penetrative act on a man can attract a charge under Section 130 BNS (one to ten years for grievous hurt by dangerous means) but not the heightened minimums and the whole-life sentence available for the same act on a woman under Section 63 BNS. The Madras High Court in 2024 directed the Government to consider amending the BNS to address the disparity; the Government's response is awaited. The cognate liberty offences under Sections 126 and 127 BNS on wrongful restraint and confinement are commonly added where the victim was held against his will during the act, and Section 351 BNS on criminal intimidation covers any threats made.

POCSO and the minor-victim space

For minor victims, the gap is not as severe. The Protection of Children from Sexual Offences Act, 2012 (POCSO) is gender-neutral on both the survivor and the perpetrator side and covers all forms of penetrative sexual assault on a person below eighteen. Section 4 of POCSO punishes penetrative sexual assault on a child with rigorous imprisonment of not less than ten years which may extend to imprisonment for life and fine. Section 6 punishes aggravated penetrative sexual assault with rigorous imprisonment of not less than twenty years extending to imprisonment for life or death. The POCSO scheme therefore continues to fill the doctrinal space for minor victims, and the dropping of Section 377 IPC has no practical effect for that population.

International and comparative perspective

The Naz reasoning was anchored in part on the trend in comparative constitutional law. The European Court of Human Rights in Dudgeon v. United Kingdom, 1982, had held that the criminalisation of consensual same-sex acts violated Article 8 of the European Convention. The United States Supreme Court in Lawrence v. Texas, 539 US 558 (2003), had reached the same conclusion under the Due Process Clause. The South African Constitutional Court in National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6, had struck down the equivalent South African provision. The Indian Constitution Bench in Navtej drew on this comparative material.

India is also a State party to the International Covenant on Civil and Political Rights, 1966, which the Human Rights Committee in Toonen v. Australia, 1994, read as prohibiting the criminalisation of consensual same-sex conduct. The constitutional position therefore aligns with India's international obligations, although the current BNS gap on non-consensual acts is in tension with India's obligations under the Convention against Torture (which India has signed but not yet ratified) and the Convention on the Elimination of All Forms of Discrimination against Women (which India has ratified).

Cognate offences in the BNS that may be invoked

Pending legislative correction, the prosecutorial response to non-consensual carnal acts on adult male and transgender survivors has been to invoke a cluster of cognate offences. Section 117 BNS on hurt by dangerous means is the most often-charged provision; the medical-examination evidence of physical injury supplies the actus reus. Section 45 BNS on abetment is invoked where more than one person was involved. Section 61 BNS on criminal conspiracy is invoked where the conduct was a pre-planned scheme. The general exceptions framework of Sections 14 to 44 BNS applies in principle, but consent under Section 26 BNS does not save the act if it would amount to grievous hurt or worse — so consent is no defence to a Section 130 BNS charge in this context.

The transition period and pending cases

The BNS came into force on 1 July 2024. The transitional provisions of Section 358 BNS (the repeal-and-savings clause) keep alive prosecutions, investigations and pending appeals that were instituted under the IPC before that date. A Section 377 IPC prosecution that was registered before 1 July 2024 therefore continues to be tried and decided under the IPC, with the Navtej reading-down applied. A fresh case of non-consensual carnal intercourse arising after 1 July 2024 cannot be charged under Section 377 IPC because the section is no longer on the statute book — only the cognate BNS provisions are available.

Several first information reports lodged in the second half of 2024 against accused for non-consensual sodomy were initially registered under Section 377 IPC and then re-registered under Sections 130 and 351 BNS after the prosecution was alerted to the legislative change. Some defence counsel have challenged the re-registration as a violation of the bar on retrospective criminalisation under Article 20(1); the response is that Section 130 BNS is not a new offence — it was already on the statute book under its IPC predecessor (Section 326 IPC) — and the re-charging is therefore not retrospective in the constitutional sense.

Sentencing under the former Section 377 IPC — the case-law record

For the period until 1 July 2024, Section 377 IPC carried a maximum of imprisonment for life and a maximum of ten years on the lesser tariff, with mandatory fine. The trial-court record shows two distinct sentencing patterns. For non-consensual carnal acts on minors and on women, sentences clustered at the upper end of the band — frequently life imprisonment — and were almost always combined with a charge under Section 376 IPC (where the survivor was a woman) or under POCSO (where the survivor was a minor). The Supreme Court in Rajesh v. State of M.P., AIR 2017 SC 532, upheld a life sentence under Section 377 IPC where a seven-year-old girl in the accused's care had been subjected to repeated unnatural acts, with medical and DNA evidence supplying the conclusive proof. The reasoning continues to apply to charges now framed under the cognate BNS provisions and POCSO.

For consensual same-sex acts, the sentencing record in the post-Naz, pre-Koushal interregnum (2009–2013) is striking: trial courts and High Courts routinely refused to entertain prosecutions, and the few that did reach a finding tended to impose nominal sentences. After Suresh Kumar Koushal, the Section 377 IPC charge briefly resurfaced in some first information reports, but the conviction rate remained negligible because the conduct was rarely proved beyond reasonable doubt and the prosecutorial appetite was thin. By the time of Navtej in 2018, the section was effectively dead-letter for consensual conduct, and the Court's reading-down only formalised the position.

The medical-evidence record

The earlier Section 377 IPC jurisprudence on medical evidence remains relevant for charges now framed under Section 130 BNS. The Supreme Court in Gowrishankara Swamigalu v. State of Karnataka, (2008) 14 SCC 411, set out the standards for medical examination of an accused for anal intercourse — the examination must be conducted within a window of two to three days for the lacerations to be observable; the absence of medical evidence is not by itself a crucial factor in all cases but must be considered as a relevant factor when the other evidence points towards innocence; and where two views are possible the appellate court will not ordinarily interfere with an acquittal. The Bombay High Court in Brother John Antony v. State of T.N., 1992 Cr LJ 1352, set out the categories of acts that fall within the unnatural-offence definition: oral intercourse, and the manipulated movement of the perpetrator's penis being held by the survivor in such a way as to create an orifice-like opening for insertion and withdrawal till ejaculation. Both rulings continue to inform the medical-examination standard now applied to Section 130 BNS prosecutions in the same fact patterns.

Critique and policy debate

The legislative omission has been defended on the ground that the field is now adequately covered by the cluster of BNS provisions and POCSO, and that retaining a moralistically loaded colonial-era section in the new code would have been incongruous. The contrary view — held by most law-reform commentators and by the Standing Committee on Home Affairs — is that the cluster does not in fact cover the field, and the dropping of the section without an express replacement leaves an unjustifiable disparity in the protection afforded to non-female survivors. The debate is set to continue and the constitutional petitions before the Supreme Court will likely shape the next chapter.

A separate strand of critique focuses on the symbolic value of statutory text. Even after Navtej read down the operation of Section 377 IPC, the section remained on the books and continued to communicate to police, prosecutors and the public that some category of consensual conduct between adults was capable of being criminal. The dropping of the section by the BNS removes that symbolic residue. The same drafting choice, however, also removes the textual hook that the Supreme Court used to anchor the surviving categories — and the bestiality and non-consensual carnal-act fact patterns now have to be litigated under a constellation of cognate provisions whose fit is imperfect. The legislative house cleaning has produced a constitutional tidiness on one side and a doctrinal untidiness on the other.

Exam angle and quick recap

For any objective question on Section 377 IPC and the post-Navtej position, the four anchors are: the original three-fold reach (consensual same-sex, non-consensual carnal, bestiality); the Naz–Koushal–Navtej arc and the surgical reading-down in Navtej; the Section 375 not subject to Section 377 ruling; and the BNS omission and the resulting doctrinal gap for non-female survivors of non-consensual carnal acts. For prelims-style questions the most often-tested point is the precise list of categories that survived Navtej — non-consensual acts irrespective of sex, acts on minors, and bestiality. For mains-style answers the BNS choice and the constitutional debate that has followed it are the headline policy reform.

The cross-references that the trial court will most often invoke when applying the post-377 framework run across several BNS chapters. The basic sentencing framework under Sections 4 to 13 BNS on punishments applies in the usual way to the cognate offences. The procedural rules under the BNSS — recording of statements, in-camera trial where appropriate, victim-compensation under Section 396 BNSS — apply across the board. Where the conduct shades into the matrimonial setting, Section 86 BNS on cruelty (previously Section 498A IPC) is the parallel charge. Where the conduct produced economic loss to the survivor through fraudulent representation about marriage or relationship status, Sections 80 to 84 BNS on offences relating to marriage may apply. The composite charge sheet in this transitional period is therefore wider and more variegated than the older Section 377 IPC charge sheet had ever been — a paradox that the legislative simplification of the BNS has not so far resolved.

Frequently asked questions

Did Navtej Singh Johar strike down Section 377 IPC entirely?

No. The Constitution Bench in Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, struck down Section 377 IPC only insofar as it criminalised consensual sexual conduct between adults of any gender combination in private. Three categories survived: non-consensual carnal intercourse irrespective of the sex of the parties; carnal intercourse with a minor (which is in any event covered by POCSO); and carnal intercourse with an animal. The reading-down operation was surgical, not wholesale. The text of Section 377 continued in the statute book until the BNS came into force on 1 July 2024 and dropped it altogether.

Has Section 377 IPC been carried into the Bharatiya Nyaya Sanhita?

No. The BNS does not contain any equivalent of Section 377 IPC. The Standing Committee on Home Affairs that examined the Bharatiya Nyaya Sanhita Bill, 2023, recommended retention of the residual rump for non-consensual acts and bestiality, but the recommendation was not accepted. The drafting committee chose to drop the provision in its entirety. The omission is the single most consequential BNS choice in the field of offences against the human body and has produced a doctrinal gap that the Supreme Court is now hearing constitutional petitions on.

How is non-consensual sodomy on an adult male prosecuted under the BNS?

Through a cluster of cognate offences. The principal charge is Section 130 BNS on grievous hurt by dangerous means, with the medical-examination evidence supplying the actus reus. The cognate offences of Section 351 BNS on criminal intimidation and Sections 126 and 127 BNS on wrongful restraint are added where appropriate. Section 45 BNS on abetment is invoked where more than one person was involved. The result is a sentencing disparity compared with Section 63 BNS (where the survivor is a woman); the Madras High Court has directed the Government to consider an amendment.

What did Navtej Singh Johar say about the relationship between Section 375 and Section 377 IPC?

The Constitution Bench held that Section 375 IPC was not subordinated to Section 377. Section 375 IPC, as substituted by the Criminal Law (Amendment) Act, 2013, did not contain the words 'subject to any other provision of the IPC'. Therefore, where the survivor was a woman, the prosecution had to be brought under Section 375 IPC even if the act would also fall within Section 377. The reasoning carries into the BNS framework where the analogue is now Section 63 BNS, which similarly contains the four-limb actus reus including non-vaginal penetrative acts.

Is bestiality still an offence under the BNS?

Not under any specific provision of the BNS. The BNS dropped Section 377 IPC in its entirety, including the bestiality limb. Acts of bestiality are now prosecuted under the Prevention of Cruelty to Animals Act, 1960, which carries far milder penalties than the former Section 377 IPC offered. The mismatch has been flagged by animal-welfare groups and by some State governments as a regulatory gap that the new code did not adequately address. A legislative amendment is being considered but has not yet been enacted.