Beyond Sec 377 - Analyzing the Legislative Shift from IPC to BNS & Its Jurisprudential Impact

The Bharatiya Nyaya Sanhita Bill, 2023, was introduced by the Home Affairs Ministry in the Lok Sabha on August 11, 2023. The Standing Committee referred it and made key modifications compared with the current Indian Penal Code, 1860. Section 377, which addressed unnatural offenses such non-consensual same-sex relationships, necrophilia, and bestiality, was repealed by the Bharatiya Nyaya Sanhita Bill, 2023. Necrophilia is defined as a sexual offence against a dead body, while bestiality is defined as sexual contact between a human and an animal. The inclusion of Section 377 in the Indian Penal Code dates back to 1862, during the period of British governance over India. Prior to its enactment, there existed no regulatory framework governing sexual conduct within the country. Under the Indian Penal Code, 1860, Section 377 defined Unnatural Offences 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.” According to Black’s Law Dictionary, “Homosexual is a person who is attracted to the person of the same sex.” The Unnatural Offences are inclusive, covering the exploitation of a female by a female or of a male by a male, of a deceased body by an individual, or of an animal by a human. The neglect shown towards homosexuals, animals and deceased bodies in the Bharatiya Nyaya Sanhita Bill, 2023, by not including the provisions of Section 377 dealing with unnatural offences, has created a grey area in comparison with the Indian Penal Code, 1860. Section 63 of the BNS delineates the term ‘Rape’ as a man inserting his body part, such as a penis or any foreign object, into a woman’s body. According to the definition provided in the Bill, only women can be victims of sexual offences such as rape, leaving men vulnerable without any legal recourse.