Definition
Carnal intercourse against the order of nature — formerly criminalised by IPC Section 377, partially decriminalised in 2018.
The colonial-era offence under IPC Section 377 covering carnal intercourse against the order of nature — read down by the Supreme Court in 2018 to exclude consensual adult acts; non-consensual acts now covered under rape/assault provisions.
Statutory Definition
IPC Section 377 (read down in Navtej Singh Johar v. Union of India, 2018); BNS 2023 does not include an equivalent provision for consensual adult acts.
Etymology & Origin
From Old French 'naturel' (of or according to nature — Latin 'naturalis') with the prefix 'un-' (not, reversal). 'Unnatural' in its Victorian legal usage meant any sexual act not aimed at procreation — reflecting 19th-century British colonial morality that was imposed on India through the IPC. The classification of non-procreative sexual acts as 'unnatural' has been challenged and largely abandoned in modern law.
Full Legal Analysis
IPC Section 377, inherited from the colonial British Penal Code (drafted by Macaulay in 1860), criminalised 'carnal intercourse against the order of nature with any man, woman or animal.' The section was framed on the basis of Victorian-era English law that criminalised all non-procreative sexual acts. In India, Section 377 was used to prosecute same-sex activity between consenting adults, as well as non-consensual acts and bestiality. The section carried a maximum sentence of life imprisonment.
The constitutional journey of Section 377: (1) Naz Foundation v. Government of NCT of Delhi (2009) 160 DLT 277 (Delhi High Court) — the Delhi High Court read down Section 377 to exclude consensual adult same-sex acts from its purview, holding the section to be unconstitutional to that extent; (2) Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1 — the Supreme Court reversed the Delhi High Court, reinstating Section 377 in full; and (3) Navtej Singh Johar v. Union of India (2018) 10 SCC 1 — a five-judge Constitution Bench of the Supreme Court unanimously overruled Koushal and held that Section 377, to the extent it criminalised consensual sexual acts between adults in private, was unconstitutional.
A five-judge Constitution Bench of the Supreme Court unanimously held that Section 377 IPC, insofar as it criminalised consensual same-sex acts between adults in private, was unconstitutional as violating Articles 14 (equality), 15 (non-discrimination), 19 (freedom of expression and identity), and 21 (right to life and dignity). The Court held that sexual orientation is an essential component of one's identity and is protected under Article 21. The colonial-era provision reflected Victorian morality, not the values of the Indian Constitution. Section 377 was retained only insofar as it criminalised: (a) non-consensual acts; (b) acts with minors; and (c) bestiality. The judgment is a landmark in Indian constitutional law on the rights of LGBTQ+ persons.
Current legal position: consensual sexual acts between adults in private — including same-sex acts — are not criminalised under Indian law following Navtej Singh Johar (2018). The BNS, 2023 does not include a provision equivalent to IPC Section 377 for consensual adult acts. Non-consensual penetrative sexual acts are covered by Section 63 BNS (Rape — if the victim is a woman) or possibly other provisions. Acts with minors are criminalised under the POCSO Act, 2012. Bestiality may be addressed under Prevention of Cruelty to Animals Act, 1960 and possibly under other BNS provisions.
For advocates, the legacy of Section 377 is relevant in: (1) ongoing cases registered under IPC Section 377 before Navtej Singh Johar — these are affected by the ruling; (2) constitutional petitions seeking marriage equality for same-sex couples — the Supreme Court in Supriyo v. Union of India (2023) declined to recognise same-sex marriage, leaving the matter to Parliament; (3) anti-discrimination protections for LGBTQ+ persons; and (4) non-consensual penetrative sexual assaults, which are now prosecuted under rape/aggravated assault provisions.
This Term in Indian Statutes
Indian Penal Code, 1860, 1860
"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."
Navtej Singh Johar 2018: Section 377 unconstitutional for consensual adult acts (Articles 14/15/19/21); BNS 2023 omits Section 377 equivalent; non-consensual acts under BNS Section 63 (Rape); POCSO for minors; Supriyo 2023: same-sex marriage not recognised
