Section 377 IPC and the BNS: What Changed for Unnatural Offences

Section 377 IPC was a colonial-era provision that punished carnal intercourse against the order of nature with any man, woman, or animal, with imprisonment that could extend to imprisonment for life. Over time its scope was narrowed by the courts.

• Consensual adult relations: Read down and decriminalised by the Supreme Court in 2018.
• Non-consensual acts: Continued to be treated as an offence under the section until the IPC was replaced.
• Bestiality: Also fell within the section's language.

Because the section covered several distinct situations, its removal affects them differently, which is the source of the current uncertainty.

The turning point was the Constitution Bench decision of the Supreme Court in Navtej Singh Johar v. Union of India (2018). The Court held that Section 377, insofar as it criminalised consensual sexual conduct between adults in private, was unconstitutional as it violated the rights to equality, dignity, and privacy.

• Consensual adult conduct decriminalised: No longer an offence.
• Non-consensual conduct and acts with minors or animals: Remained punishable at the time.

So by the time the BNS was drafted, consensual adult same-sex relations were already outside the criminal law. The debate now is about the parts of Section 377 that were not struck down. For the meaning of terms used here, see our legal glossary.

The BNS re-organised sexual offences into Chapter 5, but those provisions are framed around a female victim. This has led to a recognised gap.

Courts have observed that a Section 377-like offence cannot simply be created by interpretation where the legislature has not enacted one. Where a child is involved, the POCSO Act applies, and where the victim is a woman, the BNS sexual offence provisions apply, as covered in our note on Section 376, now Section 64 BNS.

Advocate Onkar Pandey (Bar Council of UP enrolment number UP 4825-1999) practises before the Allahabad High Court, Lucknow Bench, with a focus on criminal defence, constitutional questions, and the transition from the IPC to the new criminal codes across Lucknow and the wider Awadh region. He advises on how the omission of Section 377 affects ongoing and fresh matters.

Chamber A-406, High Court, Lucknow, Awadh Bar, UP 226001. Phone +91 98392 71553. Email advonpandey@gmail.com. This article is general legal information and not a substitute for advice on your specific facts. To discuss a case, please use the contact page.