About this topic
▶ Watch this part of the lecture (0:00)
This topic traces how Indian criminal law dealt with consensual and non-consensual "unnatural" sexual acts: from Section 377 of the Indian Penal Code, through a series of conflicting court decisions, to the present position under the B.N.S. It is a frequently asked topic in university exams, UGC NET and CLAT PG.
Three situations to judge:
- Prince and Farhan, two adult men, live together as partners.
- Zoya and her husband, a married couple, share a consensual intimate act that is not ordinary intercourse.
- Aadil, a 22-year-old man, is forced into a penetrative sexual act by another man.
In 2017, all three fell under one provision of Indian criminal law. Today, the first two are completely lawful, and the third, the only one with a real victim, has no specific sexual offence in the present code.
The topic is studied in three steps, the "three Ps":
- The Provision: Section 377 of the Indian Penal Code.
- The Pendulum: how the courts swung on the provision between 2009 and 2018.
- The Present: the position under the B.N.S.
The Provision: Section 377 of the Indian Penal Code
▶ Watch this part of the lecture (0:44)
Section 377 of the Indian Penal Code was headed "Unnatural offences". Its words were:
"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."
"Either description" means simple or rigorous imprisonment.
The Explanation to the section added:
"Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
Punishment
- Imprisonment for life, or
- Imprisonment of either description (simple or rigorous) up to 10 years, and
- Liability to fine in addition.
What the text left out
The section contained:
- No word about consent: consent was therefore no defence.
- No word about age.
- No limit of gender: it applied to acts with "any man, woman or animal".
As a result, on paper even a married couple (Zoya and her husband in the second situation) committed the offence.
"Against the order of nature": the procreation test
The phrase "against the order of nature" was never defined. Courts therefore applied a procreation test: any penetrative sexual act that could not lead to conception, such as anal or oral intercourse, was treated as unnatural.
Bestiality, meaning sexual acts with animals, was also covered.
First exam trap: do not write that Section 377 was a law against homosexual persons. Its text never mentioned them. However, almost any sexual intercourse between two men fell within it, so in practice it operated against a whole community, through harassment, blackmail and fear. The Supreme Court later returned to exactly this point.
The Pendulum: 2009 to 2018
Between 2009 and 2018, the law on Section 377 swung three times.
First swing: Naz Foundation (2009), Delhi High Court
▶ Watch this part of the lecture (2:24)
The first challenge came from health workers, not lawyers. Naz Foundation, an organisation working to prevent HIV and AIDS, found that the people it served were hiding from it: if admitting one's sexual life could make one a criminal, there was no reason to walk into a clinic.
Naz Foundation v. Government of NCT of Delhi (2009): a public interest petition filed by Naz Foundation in the Delhi High Court in 2001. Held: on 2 July 2009, a bench led by Chief Justice A. P. Shah read Section 377 down. The provision stayed, but it no longer covered consensual sexual acts between adults in private, because to that extent it violated Articles 14, 15 and 21. Non-consensual acts, and acts involving minors below 18, remained covered. Principle: a provision may be read down to the extent it is unconstitutional instead of being struck down entirely.
Reading down is like a tailor taking in a shirt instead of throwing it away. The provision remains on the statute book, but its reach is narrowed so that it no longer covers what is unconstitutional.
Second swing: Suresh Kumar Koushal (2013), Supreme Court
▶ Watch this part of the lecture (3:24)
The Union Government did not appeal against the High Court's decision, but private individuals and groups did.
Suresh Kumar Koushal v. Naz Foundation (2013): appeal by private individuals and groups against the Delhi High Court's decision. Held: on 11 December 2013, a two-judge bench of the Supreme Court reversed the High Court and restored Section 377 in full. The Court even spoke of the "so-called rights" of LGBT persons. Principle: the Court left any change in the law to Parliament.
The bridge: K. S. Puttaswamy (2017)
▶ Watch this part of the lecture (3:47)
K. S. Puttaswamy v. Union of India (2017): decided by nine judges. Held: privacy is a Fundamental Right. The leading opinion called sexual orientation an essential attribute of privacy, and said these were real rights, not "so-called" rights. Principle: this decision formed the bridge between Koushal and the third swing.
Third swing: Navtej Singh Johar (2018), Supreme Court
▶ Watch this part of the lecture (4:09)
Navtej Singh Johar v. Union of India (2018): in 2016, Navtej Singh Johar, a classical dancer, and others went straight to the Supreme Court under Article 32. This time the Union Government left the question of consenting adults to the wisdom of the Court. Held: on 6 September 2018, a five-judge Constitution Bench headed by Chief Justice Dipak Misra unanimously read Section 377 down and overruled Koushal. Principle: consensual sexual acts between adults are outside Section 377; the section survives only for non-consensual acts, acts with minors and bestiality.
Memory hook: 2009, yes (Naz Foundation). 2013, no (Koushal). 2018, yes, and for good (Navtej).
Koushal and Navtej Compared: Four Questions
Examiners test the reasoning, not just the result. The two Supreme Court decisions can be set face to face on four questions.
| Question | Suresh Kumar Koushal (2013) | Navtej Singh Johar (2018) |
|---|---|---|
| 1. Does the section punish acts or people? (Article 14) | It punishes acts; it names no identity, and those who do such acts form a separate class, so the classification is fair. | Neutral on its face but criminalised an entire class; manifestly arbitrary as it did not separate consensual from non-consensual acts; violates Article 14. |
| 2. Does "sex" in Article 15 include sexual orientation? | — | Yes: discrimination based on sexual orientation is discrimination on the ground of sex. |
| 3. Do numbers matter? | LGBT community is a minuscule fraction; fewer than 200 people prosecuted in over 150 years. | Fallacious: a Fundamental Right protects even a single individual. |
| 4. Whose morality, and who decides? | Presumption of constitutionality; Parliament chose to keep the section despite the Law Commission's advice to delete it. | Constitutional morality prevails over social morality; the Court will not wait for a majoritarian government to act. |
Question 1: Does the section punish acts, or people? (Article 14)
▶ Watch this part of the lecture (4:46)
Koushal: the section punishes acts. It names no identity, and those who do such acts form a separate class, so the classification is fair.
Navtej: rejected this reasoning.
Imagine a rule that says, "whoever writes with the left hand shall be punished". On paper, it punishes an act. In real life, it punishes left-handed people.
In legal terms, Justice Indu Malhotra said Section 377 was neutral on its face but criminalised an entire class. And because it did not separate consensual from non-consensual acts, it was manifestly arbitrary, meaning irrational and without a proper principle. So it violated Article 14.
Manifest arbitrariness means irrational and without a proper principle. Section 377 was manifestly arbitrary because it drew no line between consensual and non-consensual acts.
Question 2: Does "sex" in Article 15 include sexual orientation?
▶ Watch this part of the lecture (5:32)
- The Delhi High Court (Naz Foundation) treated sexual orientation as a ground analogous to sex.
- In Navtej, Justice Indu Malhotra, among others, held that discrimination based on sexual orientation is discrimination on the ground of sex.
Question 3: Do numbers matter?
▶ Watch this part of the lecture (5:54)
Koushal: the LGBT community was a minuscule fraction of the population, and fewer than 200 people had been prosecuted under the section in over 150 years.
Navtej: called this reasoning fallacious. A Fundamental Right is not decided by a show of hands; it protects even a single individual.
Think of a college where only two students use wheelchairs. Nobody calls the ramp unnecessary because they are few.
Question 4: Whose morality, and who decides?
Koushal relied on:
- The presumption of constitutionality, meaning a law is presumed valid unless clearly shown otherwise; and
- Parliament's choice to keep the section despite the Law Commission's advice to delete it.
Navtej answered with constitutional morality.
Untouchability was once widely practised, yet Article 17 abolished it. Social approval does not decide what the Constitution permits.
The Court also said that when Fundamental Rights are violated, it will not wait for a majoritarian government to act.
Social morality is what most people approve of at a given time; constitutional morality is what the Constitution itself stands for (dignity, equality, liberty). In Navtej, constitutional morality prevailed.
Articles 19 and 21
▶ Watch this part of the lecture (7:06)
Articles 19 and 21 completed the picture:
- Article 19: expressing one's sexual identity is free expression.
- Article 21: choosing a partner is part of privacy, dignity and autonomy.
Justice Indu Malhotra even wrote that history owes an apology to this community.
What Navtej did not strike down
Second exam trap: Navtej did not strike down the whole of Section 377. The section survived for:
- Non-consensual acts;
- Acts with minors, who cannot legally consent; and
- Bestiality.
Further, the Chief Justice's opinion protected consenting adults of any gender, not only same-sex couples.
The Present: Position under the B.N.S.
▶ Watch this part of the lecture (7:42)
On 1 July 2024, the B.N.S., 2023 replaced the Indian Penal Code. The B.N.S. has no offence of carnal intercourse against the order of nature, that is, no equivalent of Section 377.
The three situations today
| Situation | In 2017 (Section 377 IPC) | Today (B.N.S.) |
|---|---|---|
| Prince and Farhan, adult male partners | Covered by Section 377 | No offence |
| Zoya and her husband, consensual act other than ordinary intercourse | Covered by Section 377 | No offence |
| Aadil, an adult man forced into a penetrative sexual act by another man | Covered by Section 377 | Not rape; no specific sexual offence; usually only hurt or criminal force |
Forced sexual act on an adult man
One might assume Aadil's case is rape. It is not:
- Section 63 of the B.N.S. begins, "A man is said to commit rape if he", and each act it lists is done to a woman. Aadil is a man, so in law it is not rape.
- No other provision directly punishes a forced sexual act on an adult man.
- Such an act can usually be prosecuted only as voluntarily causing hurt under Section 115 (up to one year), or as criminal force under Section 131.
- By contrast, rape under Section 64 carries at least ten years.
Bestiality and children
- The B.N.S. also has no specific offence of bestiality.
- Children are safer: the Protection of Children from Sexual Offences Act, 2012 protects every child, boy or girl.
Other gaps from the narrow wording of rape
- A woman cannot commit rape as defined in Section 63.
- A transgender person who is not a woman cannot be a victim of rape under Section 63.
- Under Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, sexual abuse of a transgender person carries only six months to two years and fine, even after the 2026 amendment.
Attempted reform
▶ Watch this part of the lecture (9:17)
In 2019, the Criminal Law Amendment Bill was introduced in the Rajya Sabha as a private member's Bill, meaning a Bill moved by a member of Parliament who is not a Minister. It proposed that anyone could be a victim or an offender of sexual offences, but it never became law.
Courts cannot create offences. Only Parliament can close this gap.
Progress or gap?
Dropping Section 377 from the B.N.S. was both progress and a gap. The old law asked whether an act was natural. The Constitution taught it to ask whether the act was consensual. The question now is whether every victim, of every gender, is protected.
Quick revision
▶ Watch this part of the lecture (9:42)
- Naz Foundation, 2009, Delhi High Court: read Section 377 down.
- Suresh Kumar Koushal, 2013, two judges of the Supreme Court: restored the section in full.
- K. S. Puttaswamy, 2017: protected privacy as a Fundamental Right.
- Navtej Singh Johar, 2018, five judges: read the section down for good.
- The B.N.S. has no equivalent of Section 377, and its rape provision still applies only to a man against a woman.
- Was dropping the section progress or a gap? Both.
