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SECTION 377 IPC: IS THE NEED FOR BNS, 2023?

This article is written by Jeyashri R, a student at Government Law College, Madurai.

This article examines the history of unnatural offences, key definitions of unnatural offences, unnatural sex is not an offence, as an opportunity and risk and judicial precedents.

Everyone shall have the fundamental right to grant consent as envisaged by the Indian Constitution.  Therefore, an individual’s right to consent must be respected by others, irrespective of their gender or birth. If a person does not acknowledge another person’s consent, it amounts to an offence, whether natural or unnatural. 

In India, offences are governed by new Criminal laws, i.e., the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA), 2023, as well as several special laws, including the Protection of Children from Sexual Offences Act (POCSO), 2012. 

But unnatural offence is not defined as an offence under the Bharatiya Nyaya Sanhita (BNS), 2023.  This raised several concerns in non-consensual and forced relationships.

HISTORY OF UNNATURAL OFFENCE

The history of unnatural offences began in England through the common law, which categorised sodomy as a crime. Further, the Buggery Act of 1533 in Britain penalised sodomy by imposing severe punishment, including the death penalty. 

In 1861, England and Wales abolished the death penalty for buggery.  Later, in Britain, the Sexual Offences Act 1967 was passed, which decriminalised homosexuality and acts of sodomy between consenting adults.  However, worldwide, around 32 commonwealth countries criminalise unnatural offences.  For example, Bangladesh, Brunei, Ghana, Sri Lanka, Pakistan etc,. 

In 1860, the Indian Penal Code (IPC) was drafted by Lord Macaulay for India.  Section 377 of the IPC defines unnatural offences.  Later, this code was repealed and replaced by the Bharatiya Nyaya Sanhita (BNS), 2023.  In this new Act, unnatural offences were not criminalised.

DEFINITION

  • UNNATURAL OFFENCES.

In India, the term “Unnatural offences” was defined under Section 377 of the Indian Penal Code, 1860. It stated as, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”   The unnatural offences are relationships between men and men, women and women, humans and animals, and sometimes men with women.

It also clearly established that mere penetration is sufficient to constitute the carnal intercourse necessary to the offence.  Section 377 of the IPC prescribes punishment of 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.

  •  OTHER DEFINITIONS

According to Black’s Law Dictionary, 4th Edition, the term “Carnal Intercourse” is often defined as an act pertaining to the body.  

In addition, the term “Sodomy” is defined as an act against the order of nature.  For example, a Sexual act by a man with a man, or, in the same unnatural manner, with a woman or with a beast.

According to Black’s Law Dictionary, 4th Edition, the term “Buggery” is similar to “sodomy”.  But it includes both sodomy and bestiality. Further, the term “bestiality” means sexual relations between a human being and an animal.

UNNATURAL SEX IS NOT AN OFFENCE                     

The Bharatiya Nyaya Sanhita (BNS), 2023, does not define an unnatural relationship as a crime.  In the case of Gantavya Gulati vs Union of India W.P.(CRL) 2474/2024, the petitioner approached the Hon’ble Court to direct the Parliament to include unnatural offences as a crime in new criminal laws.  However, the Hon’ble Court dismissed this writ petition.

  • OPPORTUNITY

The main reason for criticising the criminalisation of unnatural offences is that its implementation largely affects the LGBTQIA+ community.  Already, transgender individuals were facing several problems based on their gender. 

According to an Interview conducted by the International Commission of Jurists, if a transgender individual went to the Men’s toilet, people told them to go to the ladies’ toilet.  On the contrary, if transgender individuals went to the ladies’ toilet.  They were forcibly sent back to the Men’s toilet.  This is one of an example of failure in Constitutional morality and violations of human rights. 

As a result, transgender individuals are scared to drink water, use toilets, and fear of attack by haters in society. They are also facing problems regarding their right to marriage.  Because the unnatural offences provision under the IPC does not protect their consensual relationship.  Instead, it criminalises them. Thereby, it questions the very nature of their survival. 

Therefore, the Indian Parliament’s act of removing such a provision in the BNS has the potential to reduce the harassment against transgender individuals.  In addition, the removal of unnatural sex as an offence will protect husbands from fanciful, fabricated allegations by wives. 

  • RISKS

In the recent case of Shubham Mangal vs The State Of Madhya Pradesh 2026:MPHC-GWL:621, the Court discussed the issue of how an offence under Section 377 would be attracted if it is committed between husband and wife.

In this case, the Court came to the opinion that the sexual intercourse by a man with his own wife, where the wife is a major, and there is no force/coercion, then Section 377 of IPC would not be attracted in such cases.  However, it increases the chance of marital rape in India.  Thereby, it affects the rights of women in marital relationships.

Also, the Indian Parliament’s act of removing such a provision in BNS will affect transgender individuals.  Because it increases the chance of inflicting forceful sexual assault on transgender individuals.

At present, India has no specific provision to protect animals from bestiality. This will endanger animal protection in India.

CASE LAWS

CONCLUSION

This article examines the opportunity and risks of removing “unnatural sex as an offence” in the Bharatiya Nyaya Sanhita (BNS), 2023.  Further, this article reveals the human rights violations faced by transgender individuals.

The main objective of this article is to understand that an unnatural offence in a non-consensual relationship is not addressed in the Bharatiya Nyaya Sanhita (BNS), 2023.  The failure to address “unnatural offence in a non-consensual relationship” undermines the importance of respecting consent in relationships.

Therefore, the Indian parliament must consider the problems of non-consensual relationships in society and take necessary steps to protect the consenting rights of individuals from forced sexual assault.

Frequently asked questions

How many countries have legalised same-sex relationships?

According to the Our World in Data study, by 2020, same-sex sexual acts were legal in 133 countries out of the 202 countries.

Which country 1st to legalise same-sex relationships?

The Netherlands was the first country to legalise it in 2001.

What is the chapter for unnatural offences in the Indian Penal Code, 1860?

Chapter XVI of IPC.  That is, offences against the human body.

What is the full form of the term “LGBTQIA+” community?

It is abbreviated as Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Intersex, and Asexual and others.

What are the international Conventions to protect the LGBTQIA+ community?

Generally, there were several international instruments to protect their rights, including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention against Torture (CAT) and others.

REFERENCES

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