Critical Analysis of Exclusion of Unnatural Offences Under Bharatiya Nyaya Sanhita, 2023

Introduction

The Bharatiya Nyaya Sanhita, 2023 (BNS) is a legislation which replaced the Indian Penal Code, 1860 (IPC). A crucial change brought out by the new law i.e., BNS,2023 is the elimination of the provision relating to ‘Unnatural Offences’ as enshrined under Section 377, IPC, 1860. The concept of unnatural offences has been within India’s criminal justice framework since colonial times. It was introduced through Section 377 of the Indian Penal Code, 1860, the provision criminalized “carnal intercourse against the order of nature.” Prior to its enactment, there existed no regulatory framework governing sexual conduct within the country.

Unnatural offences that include non – consensual same sex, bestiality and necrophilia were made punishable under the Indian Penal Code, 1860. But the Bharatiya Nyaya Sanhita, 2023 provides a grey area for addressing these types of crimes and now since these cases are coming into spotlight, there is a need to amend the BNS, 2023. Other significant legislations such as the Prevention of Cruelty Act, 1960, The Wildlife Protection Act, 1972 also fail to provide adequate remedy against such heinous crimes. This has raised concerns and led to a debate about whether the omission of the broader concept of “unnatural offences” has narrowed the protection available to certain victims, particularly male and transgender persons, who fall outside the gender-specific definition of “rape” in Section 63 BNS.

Section 377, IPC: Meaning of ‘Against the Order of Nature’

The Indian Penal Code, 1860, defined ‘Unnatural Offences’ under Section 377 as “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”.[1] Explanation to the Section provides that “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section”. Over time, however, Section 377 came to function as a residual safeguard for cases of non-consensual anal or oral intercourse, irrespective of the gender of the victim or offender.

The law i.e., the IPC, 1860 broadly criminalized sexual acts described as being “against the order of nature” without defining what constituted “natural” sexual conduct, thereby leaving wide discretion to judicial interpretation. In practice, the provision was used primarily to target homosexual relationships, though it also extended to certain heterosexual acts such as oral and anal intercourse. The offence carried a maximum punishment of life imprisonment, reflecting the severity with which such conduct was viewed. The inherent vagueness of the provision enabled its frequent misuse, particularly against marginalized communities, including LGBTQ+ individuals.

Indian courts consistently interpreted the phrase to mean sexual acts not involving penile–vaginal intercourse leading to procreation. Acts considered “against the order of nature” generally included:

1. Anal intercourse
2. Oral sex (penile–oral penetration)
3. Bestiality
4. Certain other non-procreative penetrative acts.

Judicial Interpretations and Reforms

Over time, the approach of Indian Courts to section 377 changed dramatically, mirroring broad societal shifts and an increasing emphasis on human rights. At first, the Courts upheld section 377, considering it a legitimate law. However, as the 2000s, progressed, they began to question its constitutionality. This shift highlighted changing perspectives on law and individual rights during that era.

• Naz Foundation v. Govt. of NCT of Delhi: [2]

In 2001, an NGO called Naz Foundation filed a petition in the Delhi High Court challenging the constitutionality of Section 377, which was dismissed. In 2006, the Supreme Court directed the Delhi HC to hear the case. The Delhi High Court took an important step in legalizing homosexuality by altering how Section 377 is interpreted. They declared that punishing consensual sexual acts between adults goes against the Indian Constitution. The Court’s ruling underscored the essential role dignity and privacy in a democratic society.

• Suresh Kumar Koushal v. Naz Foundation: [3]

In this case the Supreme Court decided that Section 377 was not unconstitutional and further stated that the LGBTQ+ community made up extremely small population of the country because of which it could not be given constitutional safeguard. This decision found significant criticism for being outdated and not offering protection under the Constitution.

• National Legal Services Authority v. Union of India:[4]

In 2014, the Indian Supreme Court recognized “transgender individuals” as belonging to the “third gender.” This case was not about Section 377 itself, but it played an essential role in advancing transgender rights.  The NALSA ruling confirmed that transgender people have the same fundamental constitutional rights as everyone else. This ruling laid the groundwork for future challenges to section 377.

• Navtej Singh Johar v. Union of India:[5]

In the 5-judge bench judgement led by then Chief Justice of India Dipak Misra on a petition initiated by Bharatnatyam dancer Navtej Singh Johar, reached a unanimous decision to decriminalize consensual sexual relations between adults, regardless of their gender. This landmark ruling also involved the partial removal of Section 377 from the Indian Penal Code. The apex court criticized the portions of Section 377 that deemed consensual unnatural sex as “irrational, indefensible and manifestly arbitrary.” Every judge agreed to legalize consensual sexual acts between adults leading to changes in Section 377. the Court stressed that the Constitution should grow with society. They acknowledged that making homosexuality illegal, violated basic rights and led to unfair treatment.

Consequences of the Omission of Section 377, IPC from BNS

A major concern with the Bharatiya Nyaya Sanhita, 2023, is the absence of any specific provision safeguarding male victims of sexual assault. Under the Indian Penal Code, protection was extended to “any man, woman, or animal” against such acts of sexual violence. Therefore, it is also true under the IPC, Section 377, which prohibits “carnal intercourse against the order of nature with any man, woman, or animal,” does protect non-minor males from rape. For the purpose of protecting minor victim boys of sexual assault, there is Protection of Children from Sexual Offences Act, 2012. This section (i.e., Section 377, IPC) has been removed from the current BNS. With the enactment of the BNS, men have effectively lost one of the few legal safeguards available to them as victims of sexual assault. Moreover, the offence of rape under Section 63 of the Bharatiya Nyaya Sanhita, 2023[6], continues to be defined in gender-specific terms, operating on the assumption that rape can only be committed by a man against a woman, thereby excluding male victims from its protective scope.

The absence of such provision will allow perpetrators to get away with the punishment because they do not come under any specific portion of the law. Hence, there is a requirement to amend the current BNS, 2023, in order to protect the victims of unnatural offences, irrespective of gender. The following are considered as some of the important consequences of such omission:

1. No Provision for Homosexuals and Necrophilia: If a dead woman or a man is sexually exploited (which earlier came under Unnatural offence) commonly known as Necrophilia, the family of the sexually exploited deceased is not having any legal recourse under the present law to file a criminal case penalizing the offender.
2. No Provision for Sexual Offences Against Animals: It was held by the Supreme Court in the case of Animal Welfare Board of India v. A. Nagaraja & Ors [7] that compassion for all living creatures includes concern for their suffering and well- being. According to the interpretation of the Apex Court of India in this case, every animal has the right to life as same as any human and extended the Right to Life to the animals as well and therefore, it is the duty of the State to protect the animals from any sexual exploitation and rape but since the newly introduced BNS does not cover any such provision, it is simply disregarding the Supreme Court’s direction pronounced in this case.

• Section 63 of the BNS is not Gender Neutral: Section 63 of the Bharatiya Nyaya Sanhita, 2023[8] defines rape exclusively as an act committed by a man against a woman, thereby excluding the possibility of male victims. By failing to make the offence gender neutral and by omitting provisions relating to unnatural offences, the Sanhita ignores situations where men may be sexually assaulted by women or by other men.

Conclusion

The contemporary law i.e., the BNS, 2023 neglects the rights of the male community as a whole. The omission of Section 377 of the Indian Penal Code has undeniably altered the legal landscape governing sexual offences in India. While the decriminalization of consensual same-sex relations marked a significant advancement in constitutional morality and individual liberty, the complete removal of Section 377 without a comprehensive substitute has created a tangible legal vacuum which needs to be addressed.

Reference(S):

Legislations:

1. The Bharatiya Nyaya Sanhita, 2023, No. 45 of 2023 (replacing Indian Penal Code).
2. The Indian Penal Code, 1860, No. 45 of 1860.

Journal Articles:

1. Krishna Kumar, U. Saleena & Pelasur Chandrakumar Swamy, Reforming Sexual Violence Laws under the BNS: Progress, Pitfalls, and Persisting Gaps, 8 NAT’L J. CRIM. L. 99 (2025).
2. Sandhya Devi S, A Critical Examination of the Bharatiya Nyaya Sanhita’s (BNS) Provisions on Rape: A Gendered Perspective, 12 INT’L J. CREATIVE RSCH. THOUGHTS (IJCRT) Iss. 12 (Dec. 2024).

[1] The Indian Penal Code, 1860, § 377.

[2] Naz Foundation v. Govt. of NCT of Delhi, 160 DLT 277 (2009).

[3] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

[4] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[5] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[6] The Bharatiya Nyaya Sanhita, 2023, § 63.

[7] Animal Welfare Board of India v. A. Nagaraja & Ors, (2014) 7 SCC 547.

[8] The Bharatiya Nyaya Sanhita, 2023, § 63.