Section 377 IPC: Unnatural Offences, Supreme Court Ruling and Present Legal Position
Section 377 of the Indian Penal Code, 1860 historically dealt with certain forms of sexual intercourse described as “against the order of nature”. Its scope was substantially limited by the Supreme Court in 2018, and the IPC was repealed when the Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024.
What did Section 377 IPC provide?
The heading of Section 377 was “Unnatural offences”. The historical statutory wording was:
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.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
This wording is reproduced for historical and legal reference. It must not be read without the binding constitutional interpretation given by the Supreme Court in 2018.
Meaning of important expressions
Carnal intercourse: a term used in the former statutory provision for sexual intercourse. Penetration: the explanation stated that penetration was sufficient for the act described in the section. Imprisonment of either description: under the IPC, this meant rigorous or simple imprisonment, as applicable.
Historical punishment
The former section prescribed imprisonment for life or imprisonment of either description for up to ten years, together with liability to a fine. This punishment is not a general statement of the law governing conduct after the repeal of the IPC.
Supreme Court judgment: Navtej Singh Johar v. Union of India (2018)
On 6 September 2018, a Constitution Bench of the Supreme Court held that Section 377 IPC was unconstitutional insofar as it criminalised consensual sexual conduct between adults of the same sex. The ruling affirmed constitutional protections of equality, dignity, privacy and individual autonomy.
The judgment did not invalidate every possible application of Section 377. Non-consensual acts, acts involving minors and acts involving animals remained outside the protection given to consensual adult sexual conduct while the IPC continued to operate.
Read the Supreme Court judgment dated 6 September 2018 (PDF).
Is Section 377 IPC still applicable after the BNS came into force?
No, not as a provision governing new offences. The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023) came into force on 1 July 2024 and repealed the Indian Penal Code under Section 358. The BNS does not reproduce a direct counterpart of Section 377.
That omission does not mean all non-consensual sexual conduct is lawful. Depending on the facts, other provisions of the BNS, the Protection of Children from Sexual Offences Act, 2012 (POCSO), or other applicable laws may be relevant. In particular, POCSO provides gender-neutral protections for persons below eighteen years of age. The absence of a direct replacement for Section 377 has nevertheless raised concerns about gaps in coverage, including certain acts against adult male victims and sexual acts involving animals.
| Issue | Legal position |
|---|---|
| Consensual same-sex sexual conduct between adults | Not criminalised under Section 377 following the 2018 Supreme Court ruling. |
| Section 377 for conduct on or after 1 July 2024 | Not applicable; IPC repealed and no direct BNS replacement. |
| Sexual offences against children | POCSO and other applicable provisions continue to provide protection. |
| Incidents before 1 July 2024 | May remain subject to saved IPC liability and proceedings, subject to constitutional limits. |
What happens to Section 377 cases involving incidents before 1 July 2024?
Section 358 BNS (repeal and savings) preserves the previous operation of the IPC and certain liabilities, penalties, investigations and proceedings arising from offences committed before its repeal. Consequently, repeal does not automatically terminate every pending prosecution or appeal under the IPC.
Courts must also apply the 2018 Supreme Court ruling: consensual sexual conduct between adults cannot be treated as criminal merely by invoking the unconstitutional application of Section 377. The date of the alleged act, its nature, consent, age and other relevant facts determine the applicable legal framework.
Frequently asked questions
Has Section 377 IPC been repealed?
Yes. The IPC was repealed with effect from 1 July 2024 by Section 358 of the BNS, subject to savings for earlier matters.
What is the equivalent of IPC Section 377 in the BNS?
There is no direct equivalent provision. Other criminal laws may apply to particular conduct, but they should not be described as a blanket replacement for Section 377.
Was Section 377 fully struck down in 2018?
No. The Supreme Court invalidated its application to consensual sexual conduct between adults of the same sex, while leaving other applications of the provision unaffected at that time.
Can a Section 377 case continue after July 2024?
A case concerning conduct before repeal may continue under the savings provisions, provided the alleged conduct remained criminal after applying the Supreme Court's ruling.
Official legal sources and further reading
For authoritative legal text and judicial interpretation, consult the India Code BNS record, the BNS statutory text hosted by the Bureau of Police Research and Development, and the Supreme Court's Navtej Singh Johar judgment.
This article is general legal information, not advice on the facts of an individual case.