377 vs None
IPC Section 377 (Unnatural Offences) was read down by the Supreme Court in Navtej Singh Johar v. Union of India (2018). Consensual adult same-sex relations are now decriminalised. The BNS has no equivalent provision for consensual adult homosexual acts.
What Changed?
IPC 377 (1860–2018): criminalised all 'carnal intercourse against the order of nature' — used to prosecute consensual adult same-sex acts for 158 years.
Navtej Singh Johar v. Union of India (2018): five-judge constitutional bench unanimously read down Section 377 to decriminalise consensual adult same-sex acts, citing violations of Articles 14, 15, 19, and 21.
BNS (2023): contains NO provision equivalent to Section 377 for consensual adult homosexual relations — the omission is a deliberate legislative endorsement of Navtej Johar.
What remains criminal: non-consensual sexual acts (covered under BNS 63/64 — expanded rape definition); bestiality (no explicit BNS provision but addressed under cruelty laws).
The court's words: 'History owes an apology to the members of this community and their families, for the decades of prejudice they have suffered and the immense harm that has been caused to them.'
Verdict
"A landmark constitutional transformation — India ended 158 years of criminal persecution of LGBTQ+ persons. The BNS's omission of Section 377 for consensual adult acts is a direct legislative endorsement of the Navtej Johar judgment. Non-consensual sexual acts continue to be criminal under the expanded BNS rape provisions (BNS 63/64)."
Detailed Analysis
377
Unnatural offences
None
Section Removed / De-criminalised
Legal Implications
Practical Scenarios
"Consensual sexual relations between two adult men — DECRIMINALISED since Navtej Johar (2018); no offence under BNS."
"Consensual sexual relations between two adult women — DECRIMINALISED; no offence under BNS."
"Non-consensual anal or oral sexual assault — remains criminal, now covered under the expanded BNS 63/64 rape definition."
Expert Q&A
Is homosexuality legal in India?
Yes — the Supreme Court in Navtej Singh Johar v. Union of India (2018) decriminalised consensual adult same-sex relations by reading down Section 377 IPC. The BNS has no provision criminalising consensual adult homosexual acts.
Was Section 377 completely removed?
Navtej Johar (2018) 'read down' Section 377 — it was not formally repealed but its application to consensual adult same-sex acts was struck down as unconstitutional. The BNS then went further by simply not including any equivalent provision, effectively completing the legislative abolition.
Does Section 377 or any BNS provision still criminalise non-consensual same-sex acts?
Yes — non-consensual sexual acts (including non-consensual anal or oral intercourse) are criminal under the expanded BNS 63/64 (rape definition), which covers all non-consensual sexual penetration regardless of the genders of the parties.
What was the journey of Section 377 through Indian courts?
Three key judgments: Naz Foundation v. Govt of NCT of Delhi (Delhi HC, 2009) — first struck down Section 377 for consensual adults. Suresh Kumar Koushal v. Naz Foundation (SC, 2013) — reversed this, reinstating Section 377. Navtej Singh Johar v. Union of India (SC, 2018) — five-judge bench overruled Koushal and permanently decriminalised consensual adult same-sex acts.
Does decriminalisation of Section 377 mean marriage equality in India?
No — the Navtej Johar judgment only addressed criminal law. In Supriyo v. Union of India (2023), a five-judge Supreme Court bench declined to recognise same-sex marriage, holding that recognition of marriage is a matter for Parliament. The legal status of same-sex unions in civil law remains a separate ongoing issue.
Related IPC Sections
Deepen Your Legal Knowledge
Explore more side-by-side comparisons of the Indian Law reforms 2024. Detailed analysis for lawyers, students, and legal practitioners.
Explore All Comparisons