Section 377 of the Indian Penal Code was a provision enacted in 1860 under British colonial rule that criminalized "carnal intercourse against the order of nature with any man, woman or animal," a category encompassing buggery, oral sex, and bestiality, punishable by imprisonment for life or up to ten years with or without a fine.[1][2] The law's vague phrasing enabled its frequent invocation against homosexual conduct, fueling decades of legal contention over its compatibility with constitutional rights to equality, privacy, and personal liberty. In a landmark 2018 ruling by a five-judge Supreme Court bench in Navtej Singh Johar v. Union of India, the provision was declared unconstitutional insofar as it targeted consensual sexual acts among adults, effectively decriminalizing homosexuality while preserving its application to non-consensual unnatural offenses and bestiality.[3] The section's partial retention post-2018 addressed coercive acts but left ambiguities in enforcement, particularly for male victims of sexual assault, as existing rape statutes under the Code primarily defined offenses against women.[4][5] With the Indian Penal Code's replacement by the Bharatiya Nyaya Sanhita effective July 1, 2024, Section 377 was entirely omitted without a direct equivalent, resulting in no statutory mechanism to prosecute non-vaginal penetrative assaults on men or transgender individuals, nor bestiality, and prompting Supreme Court petitions for legislative clarification that remain unresolved.[6][7] Identical or analogous provisions endure in the criminal codes of other Commonwealth nations, such as Bangladesh, Malaysia, Myanmar, Pakistan, and Sri Lanka, where they continue to criminalize similar acts despite varying enforcement.[8]
Legal Framework
Original Text and Provisions
Section 377 of the Indian Penal Code, 1860, under the heading "Unnatural offences," originally stated: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."[9][10] This text was enacted as part of Chapter XVI, addressing offences affecting the human body, and drew from English common law precedents against buggery and bestiality, aiming to prohibit non-procreative sexual acts deemed deviant.[11] The provision applied gender-neutrally to any perpetrator engaging in such acts with humans or animals, emphasizing voluntariness to exclude non-consensual or coerced conduct covered elsewhere in the code.[12]An appended explanation clarified: "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."[9] This limited the offence's core element to penile penetration, excluding mere touching or non-penetrative acts, while the phrase "against the order of nature" targeted intercourse incapable of resulting in procreation, such as anal or oral penetration between humans, or any sexual penetration involving animals.[11][13] The provision thus encompassed bestiality explicitly, as well as human acts like sodomy (anal intercourse, irrespective of participants' sexes) and potentially fellatio if involving penetration, though historical enforcement focused primarily on sodomy and zoophilia cases.[14][12]The prescribed punishments reflected the gravity attributed to these acts: transportation for life (a colonial-era penalty involving exile, typically to penal settlements like the Andaman Islands) as the maximum, or rigorous/simple imprisonment up to ten years, accompanied by a mandatory fine.[10] This structure classified the offence as cognizable (police-arrestable without warrant), non-bailable, and triable by a Court of Session or High Court, underscoring its status as a serious felony under the 1860 framework.[15] The provision's breadth allowed for its invocation in prosecutions beyond homosexuality, including non-vaginal heterosexual acts, though empirical data from the era shows predominant application to bestiality and male-male sodomy.[1]
Scope of Criminalization
Section 377 of the Indian Penal Code (IPC) criminalized "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal," prescribing punishment with imprisonment for life or imprisonment of either description for a term up to ten years, along with a fine.[16] The provision's explanation clarified that penetration alone sufficed to establish the offense, focusing on acts involving bodily penetration rather than emission or completion.[17] This made the offense cognizable and non-bailable, allowing police arrests without warrants.[15]The phrase "carnal intercourse against the order of nature" targeted non-procreative sexual acts deviating from penile-vaginal intercourse, including anal penetration (sodomy or buggery), oral penetration (such as fellatio), and bestiality involving humans and animals. Indian courts interpreted "against the order of nature" through a lens of Victorian-era morality, equating it with acts incapable of procreation or deemed perverse, regardless of consent among adults.[16] Early rulings, like Government v. Bapoli (1905), excluded non-penetrative oral acts, but subsequent decisions expanded coverage; for instance, the Kerala High Court in Brother John Antony v. State (1992) held penile insertion into the mouth as falling under the section.[18] The provision applied gender-neutrally to acts between opposite-sex partners if "unnatural," though enforcement disproportionately targeted same-sex acts and non-consensual offenses like child sexual abuse.[19]In practice, Section 377 served dual roles: prohibiting consensual adult acts deemed immoral and addressing non-consensual penetrative assaults not covered under rape laws (IPC Section 375, limited to penile-vaginal penetration of women).[17] Data from the National Crime Records Bureau indicated thousands of annual cases, predominantly involving minors or non-consensual acts, with convictions often relying on medical evidence of penetration.[19] The Supreme Court in Navtej Singh Johar v. Union of India (2018) read down the section to exclude consensual intercourse between competent adults, retaining criminalization for non-consensual acts and bestiality.[20]The provision's full repeal under the Bharatiya Nyaya Sanhita (effective July 1, 2024), which omitted an equivalent, eliminated criminalization of voluntary unnatural acts but raised concerns over gaps in prosecuting non-consensual penile non-vaginal assaults on males or transgender persons, as rape definitions remain female-centric.[21] Bestiality persists as an offense under separate animal cruelty laws, though without the IPC's specific penal framework.[5]
Historical Origins
Colonial Introduction
The Indian Penal Code (IPC), incorporating Section 377, originated as a comprehensive criminal code drafted under British colonial administration to standardize laws across diverse regions of India. Thomas Babington Macaulay, appointed president of the First Law Commission by the East India Company in 1834, oversaw the drafting, which commenced in 1835 and produced a preliminary report in 1837 containing the core provisions, including those later codified as Section 377.[22] The code represented an ambitious imperial project to replace fragmented local customs, Islamic and Hindu jurisprudence, and ad hoc regulations with a unified system reflective of British legal principles.[16]Enactment followed extensive debate and revision; the IPC was passed as Act No. 45 of 1860 on October 6, 1860, and entered into force on January 1, 1862, marking the first complete criminal code in the British Empire. Section 377, located in Chapter XVI ("Of Offences Affecting the Human Body"), stated: "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." This targeted acts deemed "unnatural," encompassing sodomy, bestiality, and potentially other non-procreative sexual conduct.[23][22]The provision drew directly from English common law traditions, particularly the offense of buggery codified in the 1533 Buggery Act under Henry VIII, which criminalized anal intercourse between men or with animals as a felony punishable by death until reforms in the 19th century. British drafters adapted this framework to colonial contexts, imposing Victorian moral norms that emphasized restraint and procreative sexuality, even as enforcement in England had become selective by the mid-19th century.[24][16] Unlike the narrower focus of English law on male perpetrators and victims, Section 377 explicitly included acts involving women, expanding its punitive reach while aligning with the code's intent to regulate bodily offenses comprehensively.[16]This colonial imposition occurred amid broader efforts to "civilize" Indiansociety through legal codification, prioritizing uniformity over indigenous practices that often addressed similar acts through religious or customary penalties rather than blanket criminalization. Historical records indicate minimal prosecutions under Section 377 in early decades, suggesting its primary role as a deterrent aligned with imperial ideology rather than frequent application. The framework later influenced penal codes in other British territories, perpetuating its structure post-independence in jurisdictions like Pakistan, Bangladesh, and Sri Lanka.[14][16]
Post-Independence Retention
Upon independence on 15 August 1947, the Dominion of India retained the Indian Penal Code of 1860 in its entirety, including Section 377, which criminalized "carnal intercourse against the order of nature" with penalties of life imprisonment or up to ten years' rigorous imprisonment and fines. This continuity was formalized through the adaptation of existing laws under the India (Adaptation of Existing Indian Laws) Order, 1947, ensuring operational stability in the criminal justice system without immediate substantive reforms to provisions on sexual offenses. The Constituent Assembly debates from 1946 to 1949, which shaped the Constitution effective 26 January 1950, contained no recorded discussions on Section 377, indicating its perceived alignment with contemporaneous societal mores and lack of contention among framers focused on broader structural issues.[25]Parallel retentions occurred across other former British territories in South and Southeast Asia, where postcolonial governments adopted colonial penal codes as foundational statutes. Pakistan, partitioned from India on 14 August 1947, incorporated Section 377 unchanged into the Pakistan Penal Code of 1860, applying it in cases such as a 1981 prosecution for same-sex relations. Bangladesh, independent from Pakistan on 16 December 1971, preserved the provision in its penal code derived from the same colonial template. Sri Lanka, gaining dominion status on 4 February 1948, recodified it as Section 365A of the Penal Code but retained the core criminalization of "unnatural offences." Myanmar (Burma), independent on 4 January 1948, and Malaysia, independent on 31 August 1957, similarly upheld Section 377 in their penal codes, with enforcement documented in Malaysian cases involving penalties up to 20 years.[16][14]These retentions reflected pragmatic inheritance of comprehensive legal frameworks amid nation-building priorities, rather than targeted endorsements or repeals, as evidenced by the verbatim or near-verbatim adoption in multiple jurisdictions without early amendments. In Muslim-majority states like Pakistan and Bangladesh, the provision's persistence coincided with Islamization efforts under leaders such as Zulfikar Ali Bhutto and Zia-ul-Haq, who expanded hudud punishments but left Section 377 intact as a secular complement to religious prohibitions on sodomy. Empirical data on prosecutions remain limited prior to the late 20th century, suggesting under-enforcement but unchallenged statutory validity until rights-based challenges emerged decades later.[16][23]
The first judicial challenge to Section 377 of the Indian Penal Code occurred in 1994, when the AIDS Bhedbhav Virodhi Andolan (ABVA), an NGO focused on HIV/AIDS issues and discrimination against affected groups, filed a public interest litigation (PIL) in the Delhi High Court.[27][28] ABVA argued that the provision's criminalization of "carnal intercourse against the order of nature" impeded public health efforts by deterring open discussions on safe sex practices among men who have sex with men, a high-risk group for HIV transmission, and by restricting access to condoms and counseling in prisons where non-consensual acts were prevalent.[29] The petition sought a complete repeal of Section 377, linking it to broader demands for decriminalizing homosexuality to facilitate AIDS prevention, and highlighted empirical data from ABVA's 1991 report "Less Than Gay," which documented discrimination and health risks faced by homosexual individuals in India.[30] However, the petition received limited activist support and was not vigorously pursued by ABVA, leading to its eventual dismissal by the Delhi High Court for want of prosecution in the late 1990s.[31]A subsequent and more sustained challenge emerged on December 17, 2001, when the Naz Foundation (India) Trust, another HIV/AIDS-focused NGO, filed a PIL in the Delhi High Court under Writ Petition (Civil) No. 7455/2001, directly contesting the constitutionality of Section 377.[32] The petition contended that the law violated fundamental rights under Articles 14 (equality before law), 15 (prohibition of discrimination), 19 (freedoms including expression), and 21 (life and personal liberty, encompassing privacy and dignity) of the Indian Constitution, drawing on first-principles arguments that consensual adult sexual conduct posed no empirically demonstrated harm to society and that the provision's vagueness enabled arbitrary enforcement.[33] Naz Foundation supported its claims with affidavits from medical experts, psychiatrists, and international bodies like the World Health Organization, emphasizing data on homosexuality's non-pathological nature as per the American Psychiatric Association's 1973 declassification of it as a disorder, and evidence that criminalization exacerbated HIV spread by driving behaviors underground.[34]Hearings in the Naz Foundation case proceeded intermittently from 2002 onward, with the Delhi High Court admitting the petition but facing delays due to interventions by conservative groups and government responses.[35] In 2006, the Union of India initially defended the law as necessary for protecting public health and morality, citing purported societal consensus against homosexuality, though without robust empirical backing beyond anecdotal assertions.[36] Additional petitioners, including the Naz Foundation's allies, submitted amicus curiae briefs highlighting comparative jurisprudence from jurisdictions like the European Court of Human Rights, which had struck down similar laws on privacy grounds, but the court deferred substantive arguments until 2008.[37] Prior to the 2009 judgment, enforcement data showed Section 377 was invoked sparingly against consensual adult homosexuality—fewer than 100 reported cases annually nationwide, mostly involving non-consensual acts or minors—indicating its primary use as a tool for moral policing rather than widespread prosecution, yet activists argued this under-enforcement masked a chilling effect on personal freedoms and health interventions.[19] These pre-2009 efforts laid the groundwork for later litigation by establishing public health and constitutional arguments, despite facing judicial reticence and limited media attention amid prevailing cultural taboos.
2009 Naz Foundation v. Government of NCT of Delhi
In December 2001, the Naz Foundation, a non-governmental organization focused on sexual health and HIV/AIDS prevention, filed Public Interest Litigation (PIL) No. WP(C) 7455/2001 in the Delhi High Court, challenging the constitutionality of Section 377 of the Indian Penal Code, 1860, insofar as it criminalized consensual sexual acts between adults.[38] The petition argued that the provision violated fundamental rights under Articles 14 (equality before law), 15 (prohibition of discrimination), 19 (freedoms including expression), and 21 (right to life and personal liberty) of the Indian Constitution, by arbitrarily targeting non-procreative sexual conduct, infringing on privacy and dignity, and obstructing public health efforts against HIV/AIDS through fear of prosecution.[39][38]The Delhi High Court initially dismissed the petition in 2004 as not maintainable and academic, but the Supreme Court of India restored it on February 3, 2006, directing the High Court to decide on merits.[38] Respondents included the Government of the National Capital Territory of Delhi and the Union of India; the Ministry of Home Affairs defended retention of Section 377 to uphold public morality and protect vulnerable groups like women and children, while the Ministry of Health and Family Welfare and the National AIDS Control Organisation opposed it, citing evidence that criminalization deterred HIV testing and interventions among men who have sex with men.[38] Intervenors such as Voices Against 377 supported decriminalization, emphasizing discrimination against sexual minorities, whereas others like the Joint Action Council Kannur and retired police officer B.P. Singhal raised concerns over potential societal impacts.[39][38]On July 2, 2009, a division bench comprising Chief Justice Ajit Prakash Shah and Justice S. Muralidhar delivered the judgment, declaring Section 377 unconstitutional to the extent it applied to consensual sexual acts between competent adults in private.[38] The court reasoned that the provision violated Article 21 by denying dignity and criminalizing core sexual identity, stating: "Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution."[38] Under Article 14, it found the law arbitrary for lacking a rational nexus to any legitimate state objective, as private consensual acts posed no proven threat to public health or morals, supported by empirical data from health ministries showing increased HIV risks due to enforcement.[39][38] Article 15 was infringed by discriminating on grounds analogous to sex, with sexual orientation treated as an immutable trait warranting equal protection.[39]The bench prioritized constitutional morality—rooted in pluralism and tolerance—over transient public morality, rejecting the latter as insufficient to justify intrusion into private spheres absent compelling evidence of harm.[38] It read down Section 377 rather than striking it entirely, preserving its application to non-consensual acts, acts involving minors, or bestiality, and clarified that the ruling did not reopen finalized criminal cases.[39] The decision took immediate effect from July 2, 2009, marking a judicial shift toward recognizing privacy in intimate relations while maintaining penal sanctions for exploitative conduct.[38]
2013 Suresh Kumar Koushal v. Naz Foundation
On 11 December 2013, a two-judge bench of the Supreme Court of India, comprising Justices G. S. Singhvi and S. J. Mukhopadhaya, delivered the judgment in Suresh Kumar Koushal and Another v. Naz Foundation and Others, allowing appeals filed against the Delhi High Court's 2009 ruling that had partially struck down Section 377 of the Indian Penal Code.[40] The Court restored the full application of Section 377, holding it constitutionally valid and not violative of Articles 14 (equality before law), 15 (prohibition of discrimination), or 21 (protection of life and personal liberty) of the Constitution.[40]The bench reasoned that Section 377 targets specific acts of "carnal intercourse against the order of nature" rather than sexual orientation or identity, applying equally to heterosexual and homosexual conduct, including non-consensual acts and bestiality; thus, it does not arbitrarily discriminate against any class of persons.[40] Claims of privacy infringement under Article 21 were dismissed, as the right to privacy is not absolute and yields to compelling state interests in safeguarding public health, decency, and morality, which the provision rationally advances.[40] The Court further rejected arguments under Article 15, finding no basis for treating homosexuals as a "determinate class" entitled to heightened protection, and emphasized that any perceived stigma arises from the acts themselves, not the law.[40]Central to the decision was empirical data on enforcement: between 2009 and 2013, only 152 cases were registered under Section 377 nationwide, involving 197 accused, with just 52 pertaining to consensual acts between adults; the majority involved minors or non-consent.[40] The Court described those affected by consensual same-sex enforcement as a "minuscule fraction" of the population, arguing that laws cannot be invalidated merely for impacting small groups, and that reform of such provisions—rooted in moral and public order concerns—falls to Parliament, not the judiciary, to avoid overstepping into legislative policy.[40] This deference underscored that constitutional review tests validity, not desirability, particularly for provisions enacted by elected representatives.[40]The ruling faced immediate backlash from rights advocates, who argued it minimized evidence of harassment, blackmail, and police abuse documented in affidavits, and undervalued fundamental rights protections for minorities irrespective of numbers; legal commentaries critiqued the reasoning as overly deferential to majoritarian views and inconsistent with evolving privacyjurisprudence.[41][42] Defenders, including some constitutional scholars, praised the restraint against judicial legislation on contested social norms, noting the low prosecution rates empirically supported claims of limited practical criminalization of private consensual acts.[43] The Union government, initially neutral, filed a review petition in 2014, citing public health concerns from HIV prevalence, though the Court declined to alter the outcome pending legislative action.[40]
In August 2016, classical dancer Navtej Singh Johar filed Writ Petition (Criminal) No. 76 of 2016 in the Supreme Court of India, challenging the constitutionality of Section 377 of the Indian Penal Code, 1860, specifically seeking to overturn the 2013 decision in Suresh Kumar Koushal v. Naz Foundation, which had upheld the provision's validity against claims of violating fundamental rights.[44] Johar, along with co-petitioners including journalist Sunil Mehra, chef Rishi Vyas, and hoteliers Aman Nath and Keshav Suri, argued that the law criminalized consensual sexual acts between adults, thereby infringing on rights to equality (Article 14), non-discrimination on grounds including sex (Article 15), freedom of expression (Article 19), and life and personal liberty including privacy (Article 21) of the Constitution.[33] The petition highlighted empirical evidence of harassment, blackmail, and mental health impacts on the LGBT community due to the law's enforcement, drawing on data from organizations like the Naz Foundation showing over 1,500 cases registered under Section 377 between 2010 and 2015, predominantly involving consensual acts.[45]The case was referred to a five-judge Constitution Bench comprising Chief Justice Dipak Misra, Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra, following the acceptance of a curative petition against the Koushal ruling on January 8, 2018.[45] Hearings commenced in July 2018, with petitioners contending that sexual orientation is an innate trait, supported by scientific consensus from bodies like the American Psychological Association, rendering the law's classification of such acts as "unnatural offences" arbitrary and lacking a rational nexus to any legitimate state interest.[33] Intervenors opposing decriminalization, including groups like the Trust God Ministries and Ayurakram, argued that the provision protected public health and morality, citing potential risks of HIV transmission and cultural norms, though these claims were countered with data showing no causal link between decriminalization and increased disease rates in jurisdictions like the United States post-2003 Lawrence v. Texas.[46] The Union of India, represented by Attorney General K.K. Venugopal, did not defend the law's application to consensual adult acts, stating it deferred to the Court's wisdom and noting the 2017 Justice K.S. Puttaswamy v. Union of India recognition of privacy as a fundamental right encompassing intimate choices.[33]On September 6, 2018, the Bench unanimously held in Navtej Singh Johar v. Union of India (Writ Petition (Criminal) No. 76 of 2016) that Section 377 was unconstitutional to the extent it criminalized consensual sexual acts between competent adults in private, reading down the provision while retaining its applicability to non-consensual intercourse and bestiality to safeguard vulnerable groups like minors and animals.[46] The majority opinion, authored by Chief Justice Misra, emphasized that discrimination on grounds of sexual orientation offends Article 14's equality guarantee, as the law failed the test of intelligible differentia and rational relation to a legitimate purpose, with Justice Chandrachud's concurring opinion underscoring that the right to intimacy forms part of personal liberty under Article 21, rejecting moral disgust as a basis for criminalization absent harm to others.[47] Justice Malhotra noted the law's colonial origins lacked empirical basis in Indian society, where historical texts like the Kama Sutra evidenced tolerance for diverse sexual practices.[46] The ruling cited global precedents like Lawrence v. Texas (2003) and Dudgeon v. United Kingdom (1981), affirming that constitutional morality, rooted in pluralism and inclusivity, supersedes individual notions of societal morality.[33]The judgment directed governments to ensure non-discrimination against the LGBT community, including awareness campaigns and counseling, but stopped short of addressing marriageequality or adoption rights, focusing solely on decriminalization.[46] It explicitly overruled Koushal's view that only a "miniscule fraction" of the population was affected, stating that fundamental rights apply irrespective of numbers impacted, and invalidated the prior decision's reliance on transient public opinion over enduring constitutional principles.[47] Post-judgment, enforcement data from the National Crime Records Bureau indicated a decline in Section 377 registrations for consensual acts, though challenges persisted in rural areas due to uneven awareness and cultural resistance.[33]
Post-2018 Curative and Privacy Rulings
Following the 2018 Navtej Singh Johar v. Union of India judgment, which partially struck down Section 377 of the Indian Penal Code by decriminalizing consensual sexual acts between adults, curative petitions previously filed against the 2013 Suresh Kumar Koushal v. Naz Foundation ruling remained pending. These petitions, initiated by petitioners including the Naz Foundation, sought review of the 2013 Supreme Court decision that had upheld the constitutionality of Section 377 and reversed the Delhi High Court's 2009 decriminalization in Naz Foundation v. Government of NCT of Delhi.[48][49]On February 8, 2024, a three-judge Supreme Court bench, headed by Chief Justice D.Y. Chandrachud, declared these curative petitions infructuous. The court reasoned that the Navtej Singh Johar ruling had effectively overruled Suresh Kumar Koushal by affirming the unconstitutionality of applying Section 377 to consensual adult same-sex relations, thereby mooting any relief sought through the curatives.[48][50][51] The bench emphasized that the 2018 decision provided the substantive outcome petitioners had advocated, closing the matter without further oral hearings on the merits.[48]No curative petitions challenging the Navtej Singh Johar judgment itself have been admitted or ruled upon as of 2024, reflecting judicial finality on the decriminalization aspect. Regarding privacy, the Navtej Singh Johar ruling had integrated the right to privacy—recognized as fundamental in the 2017 Justice K.S. Puttaswamy v. Union of India decision—by holding that sexual orientation and intimate consensual acts fall within its protective ambit under Article 21 of the Constitution.[49] Post-2018, lower courts have applied this privacy framework in Section 377 cases involving non-consensual acts or minors, upholding convictions where privacy yields to public order or protection of vulnerable parties, but no Supreme Court-level privacy-specific overrulings or expansions tied to Section 377 have emerged.[48] This maintains the 2018 balance, criminalizing non-consensual unnatural offenses while shielding private adult autonomy.[49]
Debate and Perspectives
Arguments for Retaining Full Section 377
Proponents of retaining Section 377 in its full form, criminalizing "carnal intercourse against the order of nature," have emphasized its role in upholding public morality and societal norms rooted in India's cultural and religious traditions. Religious organizations, including the Vishwa Hindu Parishad, argued that diluting the provision would contravene established cultural values, viewing such acts as incompatible with traditional Hindu ethos that prioritizes procreative heterosexual unions within marriage. Similarly, the Indian Union Muslim League maintained that homosexuality conflicts with Indian cultural principles, advocating preservation of the law to align with predominant societal moral standards. Christian groups, such as the Apostolic Alliance of Churches and Trust God Ministries, intervened in judicial proceedings to assert that decriminalization would promote moral turpitude and undermine family structures central to religious teachings.[52][53]The Ministry of Home Affairs contended that full retention of Section 377 is essential to prevent an influx of "delinquent behavior," positing that repeal could erode ethical boundaries and lead to broader societal degradation. Intervenors in the Suresh Kumar Koushal case highlighted the law's alignment with constitutional deference to legislative wisdom on public morality, arguing that individual rights to privacy do not extend to acts deemed offensive to collective ethical standards. These positions reflect a causal view that legal endorsement of non-procreative sexual acts disrupts social cohesion, potentially increasing instances of exploitation under the guise of consent, as evidenced by the law's application in prosecuting non-consensual or coercive acts beyond same-sex contexts.[54][55]Public health considerations formed another pillar, with some stakeholders warning that decriminalization might exacerbate the spread of HIV/AIDS by normalizing high-risk behaviors associated with men who have sex with men (MSM), a demographic showing elevated infection rates in India. The Union government in earlier proceedings invoked the provision's deterrent effect against acts linked to disease transmission, arguing it supports broader efforts to curb epidemics through moral restraint rather than solely medical interventions. Proponents cited global patterns where legal restrictions correlate with lower incidence in conservative societies, though empirical causation remains debated, prioritizing preventive legal barriers over post-facto harm mitigation.[33][56]Retention advocates also stressed the law's utility in safeguarding vulnerable groups, including women and children, from predatory or abusive "unnatural" offenses that Section 377 uniquely addresses beyond standard rape provisions. In the Koushal judgment's rationale, which upheld the section, the Supreme Court noted its infrequent but targeted use against serious perversions, preserving a legal tool for non-consensual acts irrespective of orientation. Religious and conservative intervenors argued that partial repeal for adults would complicate prosecutions involving minors or coercion, potentially weakening protections in a society where family honor and child welfare hinge on strict moral-legal frameworks. This perspective underscores a first-principles approach: laws must causally deter deviations from natural order to maintain institutional integrity, attributing societal stability to such normative enforcement.[57][58]
Arguments Against Full Repeal
In the Navtej Singh Johar v. Union of India judgment of September 6, 2018, the Supreme Court of India explicitly retained Section 377's applicability to non-consensual carnal intercourse against adults, all acts of such intercourse against minors, and bestiality, reasoning that these provisions address tangible harms including coercion, exploitation, and violations of dignity that demand state intervention under constitutional morality.[59] The Court emphasized consent as the "real fulcrum" of sexual relationships, holding that non-consensual acts under Section 377 constitute penal offenses akin to personal injury or rape, distinct from consensual conduct, to ensure legal recourse for victims not fully covered by statutes like Section 375 of the Indian Penal Code or the Protection of Children from Sexual Offences (POCSO) Act, 2012.[59]For acts involving minors, the retention was justified on the grounds that children are presumed incapable of informed consent, making such offenses inherently exploitative and requiring criminalization to fulfill the state's duty to protect vulnerable populations, as aligned with international norms and domestic laws like POCSO.[59] Bestiality was upheld without debate as a public wrong that disrupts social stability, harms animal welfare, and warrants prohibition beyond individual choice, reflecting a consensus on its criminal nature to prevent community-level disorder.[59]Post-2018 legislative deliberations reinforced the need for partial retention, with a parliamentary panel in October 2023 recommending reintroduction of Section 377 provisions limited to non-consensual sexual offenses against males, females, transgender persons, and bestiality, citing potential enforcement gaps if fully omitted, particularly for penetrative acts not explicitly addressed in gender-specific rape laws.[60] A November 2023 report by a House panel echoed this, advocating gender-neutral coverage under Section 377 for such acts to avoid prosecutorial vacuums, especially in cases involving male or transgender victims where existing frameworks like Bharatiya Nyaya Sanhita (BNS) provisions may fall short for non-vaginal penetration.[61]The omission of an equivalent to Section 377 in the BNS, effective July 1, 2024, has amplified concerns over legal inadequacies, as it creates a void for prosecuting bestiality—a standalone offense previously under Section 377—and certain non-consensual sodomy cases against adults, potentially hindering police action in 10-15% of reported male sexual assault incidents reliant on "unnatural offense" framing, per legal analyses. Critics argue this full effective repeal undermines protections for non-LGBTQ+ victims in ambiguous assault scenarios, necessitating targeted amendments to BNS for comprehensive coverage without overbroad decriminalization.[63]
Religious and Cultural Viewpoints
In India, religious viewpoints on Section 377 have predominantly emphasized opposition to decriminalizing consensual homosexual acts, framing such conduct as contrary to divine order, procreation, and scriptural mandates. Hindu organizations, including the Vishwa Hindu Parishad, argued in 2009 that retaining the provision protected cultural and familial structures integral to Hindu society, viewing homosexuality as disruptive to traditional norms of dharma and reproduction.[64] The Akhil Bharat Hindu Mahasabha, in response to the 2018 Supreme Court ruling, condemned the decriminalization as endorsing "unnatural" behavior that defied God's creation of men and women for complementary roles, potentially threatening societal stability.[65] The Rashtriya Swayamsevak Sangh (RSS), while acknowledging in 2016 and 2018 that homosexuality is not a crime per se and that LGBTQ individuals form part of society, maintained it constitutes an act "against nature" unfit for promotion, reflecting a tension between legal tolerance and moral disapproval rooted in Hindu emphasis on natural familial propagation.[66][67]Islamic perspectives, drawing from interpretations of the Quran and Hadith prohibiting same-sex relations as zina (fornication), have similarly favored retention of Section 377 to uphold moral and communal purity. The Darul Uloom Deoband seminary in 2009 denounced efforts to repeal the section, warning that legalizing homosexuality would erode Islamic ethical boundaries and invite divine retribution, aligning with broader clerical consensus on acts defying biological complementarity.[68] Post-2018, Sunni leaders in Kerala, including Kanthapuram A.P. Aboobacker Musliyar, opposed the verdict, asserting it contradicted sharia principles and risked familial dissolution in Muslim communities.[69] Although the All India Muslim Personal Law Board stated in July 2018 it would not challenge scrapping the provision legally, this reflected pragmatic non-interference rather than endorsement, as traditional jurisprudence deems such acts sinful and warranting social censure.[70]Christian denominations in India have invoked biblical prohibitions, such as Leviticus 18:22 and Romans 1:26-27, to argue against repeal, portraying homosexuality as an aberration from God's design for heterosexual marriage and child-rearing. In June 2009, church leaders declared it "against the tenets of the Bible," insisting man-woman unions alone align with natural law and ecclesiastical doctrine.[64] Three Christian groups intervened in Supreme Court proceedings prior to the 2018 ruling, defending Section 377 as a bulwark against HIV/AIDS spread and moral decay, prioritizing public health and scriptural fidelity over individual autonomy.[71] While progressive bodies like the National Council of Churches in India endorsed repeal in 2018, citing human dignity, conservative factions maintained opposition, highlighting intra-faith divisions but underscoring a core resistance to redefining sexuality outside procreative norms.[72]Culturally, Indian viewpoints have sustained Section 377's relevance by associating it with preservation of patrilineal family systems, caste endogamy, and societal reproduction, where deviations from heterosexual norms are seen as undermining lineage continuity and collective harmony. Empirical surveys, such as a 2023 cross-sectional study of Indian physicians, revealed lower acceptance of homosexuality among adherents of Abrahamic faiths—particularly Muslims—compared to Hindus, attributing this to entrenched beliefs in biological determinism and familial duty over personal expression.[73] Retention arguments often invoke the provision's role in curbing non-consensual or exploitative acts beyond homosexuality, aligning with cultural aversion to public displays of non-normative sexuality that could erode joint family structures and intergenerational obligations.[74] Despite historical precedents of gender fluidity in ancient texts like the Kama Sutra, contemporary discourse frames decriminalization as a Western import clashing with indigenous emphases on dharma-sanatan values, though post-2018 shifts indicate gradual urban acceptance tempered by rural conservatism.[75]
Political and Legislative Response
Party Positions on Retention
The Bharatiya Janata Party (BJP), India's ruling party since 2014, has maintained a cautious stance favoring the retention of Section 377 in its original form prior to the 2018 Supreme Court ruling, emphasizing its role in upholding societal norms against "unnatural" acts. In December 2013, following the Supreme Court's reinstatement of the section in Suresh Kumar Koushal v. Naz Foundation, BJP leaders, including then-party president Rajnath Singh (later Home Minister), publicly affirmed the party's opposition to homosexuality, arguing it contradicted traditional values and required legislative rather than judicial intervention for any change.[76][77] A 2016 statement by BJP spokesperson Bijay Sonkar Shastri explicitly advocated retaining the provision to deter non-consensual and public offenses, distinguishing it from private consensual acts while avoiding endorsement of the latter.[78] The party's affiliation with the Rashtriya Swayamsevak Sangh (RSS), which in 2016 described homosexuality as not criminal but "unnatural" and biologically atypical, influenced this position, though the RSS supported decriminalization of private acts without altering the section's broader application.[67] Post-2018, the BJP government did not challenge the partial striking down but retained the section for non-consensual acts and bestiality, aligning with its view of the law's necessity for public order.[79]The Indian National Congress, the primary opposition party, exhibited inconsistency on retention, initially defending Section 377 during its tenure in the United Progressive Alliance (UPA) government from 2004–2014 but later shifting toward partial support for amendment. In 2012 affidavits to the Supreme Court, the UPA defended the section's constitutionality, citing risks to public health and morality, including HIV transmission concerns, which contradicted the party's manifesto pledges for equality.[80] By December 2013, Congress leader Kapil Sibal indicated willingness to amend the law to exclude consensual adult acts while retaining it for child protection and bestiality, though no legislative action followed.[81] This ambivalence stemmed from electoral calculations, viewing LGBT issues as marginal compared to broader vote banks, and persisted in curative petitions where the party opposed full repeal to avoid "floodgates" of litigation.[82]Regional and allied parties aligned variably with retention. The Shiv Sena, a BJP ally, supported maintaining Section 377 in 2015, deeming homosexuality an "unnatural act" unfit for societal endorsement, though it later welcomed the 2018 review without committing to full repeal.[76][83] Janata Dal (United) (JD(U)) echoed this in 2015, advocating retention to preserve moral order.[76] In contrast, left-wing parties like the Communist Party of India (Marxist) (CPI(M)) consistently opposed retention, pushing for full decriminalization since 2009 as discriminatory and archaic, but these positions held limited national influence.[77][84] Overall, major parties' reluctance to legislate reflected deference to judicial processes and avoidance of polarizing cultural debates, with retention justified primarily on grounds of protecting minors, animals, and public decency rather than outright moral condemnation.[80]
Party Positions on Repeal
The Indian National Congress has advocated for repealing Section 377's criminalization of consensual adult homosexual acts, describing the provision as archaic and incompatible with modern constitutional rights. In 2009, following the Delhi High Court's decriminalization ruling, Congress president Sonia Gandhi called on Parliament to enact legislative changes to remove the section.[85]Congress MP Shashi Tharoor introduced private member's bills in December 2015 and 2016 to amend the Indian Penal Code by deleting Section 377 entirely, arguing it violated privacy and equality under Articles 14, 15, and 21 of the Constitution, though both were rejected by the Lok Sabha.[86][87]The Communist Party of India (Marxist) has explicitly endorsed the full scrapping of Section 377, framing it as a discriminatory colonial remnant that undermines personal liberty and equality. The party has consistently backed legal challenges against the provision since the early 2000s and welcomed the Supreme Court's 2018 partial striking down as a "historic victory," while urging legislative confirmation to eliminate any residual application.[84] In its 2024 election manifesto, CPI(M) reiterated support for LGBTQIA+ rights, including decriminalization efforts, positioning the repeal as essential for addressing systemic biases against sexual minorities.[66]The Aam Aadmi Party has supported decriminalization and dilution of Section 377 for consensual acts, criticizing the Supreme Court's 2013 upholding as a setback for individual freedoms. AAP condemned the ruling at the time and aligned with calls for repeal during its governance in Delhi, where it promised progressive reforms on minority rights, though it omitted explicit mention in its 2014 national manifesto amid broader electoral priorities.[88][86]Other regional and left-leaning parties, such as the Trinamool Congress and Nationalist Congress Party, have echoed pro-repeal sentiments in parliamentary interventions, emphasizing constitutional privacy rights over moralistic retention, particularly post-2018.[76] These positions contrast with more conservative parties' reluctance, highlighting a partisan divide where progressive outfits prioritize empirical alignment with global human rights norms and public health data on reduced stigma post-decriminalization.[89]
Legislative Inaction and Replacement
Following the Supreme Court's 2018 Navtej Singh Johar v. Union of India ruling, which read down Section 377 of the Indian Penal Code to exclude consensual sexual acts between adults, the Indian Parliament took no specific legislative action to amend or repeal the provision despite the judgment explicitly deferring such matters to the legislature.[90] No private member's bill or government-sponsored amendment targeting Section 377 was introduced in the Lok Sabha or Rajya Sabha between September 2018 and the introduction of broader criminal law reforms in 2023, reflecting a lack of parliamentary consensus amid ongoing debates on retention for non-consensual acts and bestiality. This inaction persisted even as petitions for curative reviews and clarifications on residual applications of the section reached the Supreme Court, with the government maintaining that legislative overhaul was preferable to piecemeal changes.[45]The provision's replacement occurred through the comprehensive recodification of India's criminal laws via the Bharatiya Nyaya Sanhita (BNS), 2023, which fully supplanted the Indian Penal Code effective July 1, 2024. Introduced in the Lok Sabha on August 11, 2023, as the Bharatiya Nyaya Sanhita Bill, 2023, the legislation omitted any equivalent to Section 377, deleting provisions on "unnatural offences" such as carnal intercourse against the order of nature. The bill was passed by the Lok Sabha on December 20, 2023, and the Rajya Sabha on December 21, 2023, before receiving presidential assent on December 25, 2023. This deletion aligned with the 2018 decriminalization of consensual adult acts but eliminated statutory coverage for bestiality and non-consensual acts not fitting under gender-specific rape provisions (BNS Sections 63–70, limited to women victims), potentially creating gaps in protections for male victims and animal welfare offences previously addressed under the read-down Section 377.[91] Critics, including legal analysts, have noted that such omissions shift reliance to general hurt or assault clauses (e.g., BNS Sections 115–118), which carry lighter penalties than the original Section 377's life imprisonment option for aggravated cases.[92]
Post-Decriminalization Status
Retained Applications
The Navtej Singh Johar v. Union of India judgment of September 6, 2018, retained the applicability of Section 377 of the Indian Penal Code to non-consensual carnal intercourse against the order of nature with adults, all such acts involving minors regardless of consent, and bestiality.[59][53] This partial reading down excluded only consensual acts between competent adults, preserving the provision's role in penalizing exploitative conduct with punishments ranging from ten years' imprisonment to life for aggravated cases.[93]The retained scope addressed legislative voids, such as non-vaginal or non-penis penetrations in adult non-consensual scenarios not explicitly covered under Section 375IPC (defining rape primarily as penile-vaginal intercourse against women), and acts against male victims.[94] For minors, it supplemented the Protection of Children from Sexual Offences Act, 2012 (POCSO), by explicitly criminalizing "unnatural" intercourse, though POCSO broadly prohibits penetrative assaults including oral and anal acts.[49] Bestiality remained exclusively under Section 377, defined as voluntary carnal intercourse against the order of nature with animals, with reported incidents prompting animal welfare interventions but limited conviction data due to underreporting and evidentiary challenges.[95]Post-2018, courts applied the provision in cases of child sexual abuse involving minors under 18, where acts like forced sodomy qualified as "against the order of nature," leading to convictions alongside POCSO charges; for instance, multiple high court rulings upheld its use for anal rape of boys, emphasizing the lack of consent inherent in minority.[96] Adult non-consensual applications targeted offenses like coerced oral sex or anal penetration, though definitional ambiguity around "order of nature" has occasionally required judicial clarification to exclude consensual variants.[97] The Supreme Court underscored this retention to deter predation without infringing adultautonomy, aligning with principles of harm prevention over moral imposition.[25]
Bharatiya Nyaya Sanhita Replacement (2024)
The Bharatiya Nyaya Sanhita (BNS), 2023, enacted by President Droupadi Murmu on December 25, 2023, and effective from July 1, 2024, fully replaces the Indian Penal Code (IPC), 1860, including the complete omission of Section 377 IPC.[98][99] This section, which penalized "carnal intercourse against the order of nature," had been partially read down by the Supreme Court in Navtej Singh Johar v. Union of India (2018) to exclude consensual sexual acts between adults, but retained applicability to non-consensual unnatural offences, bestiality, and sexual assaults on males or transgender individuals not covered under rape definitions.[99][21]The BNS contains no equivalent provision addressing these retained aspects, resulting in the decriminalization of bestiality and the absence of specific penalties for non-consensual anal or oral intercourse, regardless of victimgender.[98][4]Rape under BNS Section 63 remains defined as penetration by a man into a woman without consent, limited primarily to penile-vaginal acts, leaving male-on-male, female-on-male, or certain transgendervictim scenarios without dedicated criminalization beyond general hurt or grievous hurt provisions.[99][5] Legal analysts have highlighted this as creating a gap in protections, potentially complicating prosecutions for sexual violence against non-female victims.[4][21]In response to petitions seeking an equivalent BNS provision for non-consensual unnatural sex, the Supreme Court on October 15, 2024, declined intervention, observing that legislative policy-making on such matters falls under Parliament's domain rather than judicial mandate.[6] Critics, including legal scholars, argue the omission overlooks the 2018 judgment's intent to retain safeguards against exploitation while decriminalizing consent-based acts, potentially increasing vulnerability for marginalized groups.[100][101] Proponents of the reform, however, view the full removal as aligning with the decriminalization of adult consensual relations and simplifying the code by integrating protections into broader sexual offence chapters.[99] As of October 2025, no amendments have reinstated equivalent language, leaving the status quo intact.[6]
Societal and Empirical Impacts
Public Health Data
Prior to the 2018 Supreme Court decriminalization of consensual same-sex conduct under Section 377, the provision was frequently invoked by public health advocates, including India's National AIDS Control Organization (NACO), as a barrier to HIV prevention efforts among men who have sex with men (MSM), by deterring outreach workers, peer educators, and testing due to fear of harassment or arrest.[102][103] HIV prevalence among MSM was estimated at 4.3% to 7.0% in surveys from the mid-2010s, compared to an adult population prevalence of approximately 0.3%.[104][105]Following the Navtej Singh Johar v. Union of India ruling on September 6, 2018, which struck down Section 377's application to consensual adult acts, empirical data on MSM-specific outcomes show mixed and limited progress. NACO's Integrated Biological and Behavioral Surveillance (IBBS) reported MSM HIV prevalence at 4.3% in 2019, remaining 16.5 times higher than the national adult rate of 0.26%.[106] By 2022 estimates, prevalence among MSM had declined to 2.69%, though this figure reflects broader national trends in HIV control rather than isolated repeal effects, with no peer-reviewed studies establishing direct causation from decriminalization.[107] Incidence data from 2014 to 2022 indicate persistently high rates among MSM, with adjusted models showing an annual increase of 17%, suggesting ongoing transmission risks despite legal reform.[108]Broader STI trends among MSM post-2018 remain elevated, with syphilis, gonorrhea, and chlamydia burdens disproportionately affecting this group due to factors like network density and inconsistent condom use, though national adult HIV prevalence fell to 0.20% by 2023 amid expanded antiretroviral therapy access.[109][110] Analyses emphasize that decriminalization facilitates but does not guarantee improved outcomes, as stigma, inadequate testing uptake (with only 35% of MSM previously tested in some cohorts), and insufficient targeted interventions limit public health gains.[111] NACO's overall new infection decline of 44% since 2010 predates full repeal and includes non-MSM factors like prevention programs, underscoring that legal change alone has not reversed concentrated epidemics in high-risk groups.[110]
Social Acceptance and Persistent Challenges
Despite the 2018 Supreme Court decriminalization of consensual same-sex conduct under Section 377, public attitudes in India toward homosexuality remain divided, with surveys indicating limited widespread acceptance. A 2023 Pew Research Center poll found that 53% of Indian adults supported legalizing same-sex marriage, while 43% opposed it, reflecting a narrow majority in favor of formal recognition but highlighting substantial resistance rooted in cultural and religious norms.[112] Earlier data from a 2018-2019 Centre for the Study of Developing Societies (CSDS) survey across 12 states showed only 19% of respondents accepting same-sex relationships, underscoring that tolerance for personal conduct lags behind views on legal reforms.[113]Urbanyouth and educated groups exhibit higher acceptance rates, yet rural and conservative demographics, influenced by traditional family structures and religious teachings, continue to view homosexuality as morally unacceptable.[114]Growing visibility through events like pride parades signals pockets of social progress, particularly in metropolitan areas. For instance, annual pride marches in cities such as Bhubaneswar and Delhi have drawn thousands since 2018, fostering community solidarity and media coverage that challenges stigma.[115] However, these events often face counter-protests and police scrutiny, indicating that public demonstrations do not equate to broad societal endorsement. A 2022 Ipsos survey estimated that fewer than 30% of Indians self-identify with or closely align to LGBTQ communities, suggesting that open expression remains risky for many due to potential social ostracism. Empirical studies post-decriminalization confirm that while legal fears have diminished, interpersonal acceptance—such as familial support or workplaceinclusion—has advanced unevenly, with younger generations showing marginally more openness but still prioritizing conformity to heteronormative expectations.[116]Persistent challenges include entrenched discrimination, family rejection, and violence, which empirical data links to elevated mental health risks among LGBTQ individuals. Reports document ongoing societal stigma manifesting in employment barriers, housing denials, and verbal harassment, with 72.4% of surveyed Indians acknowledging discrimination's existence yet only 31.2% willing to advocate against it.[116] A 2024 UNDP analysis highlights healthcare access issues, where stigma deters LGBTQ people from seeking services, exacerbating vulnerabilities like higher suicide ideation rates compared to the general population.[117]Violence persists, including honor-based attacks and custodial abuses, as evidenced by post-2018 case studies in peer-reviewed literature showing no significant decline in reported incidents despite legal changes.[118] The absence of anti-discrimination laws beyond decriminalization leaves individuals exposed, with World Bank data confirming systemic exclusion in education and labor markets, perpetuating economic marginalization.[119] These realities stem from causal factors like intergenerational transmission of conservative values and inadequate public education, hindering full integration.[115]Broader cultural resistance, including media portrayals that sensationalize rather than normalize LGBTQ lives, reinforces challenges. Studies indicate that while decriminalization reduced criminal prosecutions, social penalties—such as disownment affecting an estimated 20-30% of outing cases—drive many into concealment or migration to tolerant urban enclaves.[120] Empirical gaps in nationwide violence tracking underscore underreporting, but qualitative evidence from health equity reviews points to sustained disparities in mental and physical well-being, attributable to unaddressed prejudice rather than legal voids alone.[118] Progress toward acceptance requires confronting these empirical barriers through evidence-based interventions, as legal decriminalization alone has not dismantled deep-seated normative opposition.[121]
Broader Cultural Effects
The decriminalization of consensual adult same-sex relations under Section 377 in September 2018 prompted a modest expansion of queer visibility in Indianentertainment media, particularly on over-the-top (OTT) platforms, where web series began incorporating more explicit LGBTQ+ narratives. Productions such as Made in Heaven (2019) and The Family Man (2019 onward) featured same-sex relationships and characters, marking a departure from prior censorship-driven avoidance or stereotyping of homosexuality as deviant or comedic. This shift aligned with platform algorithms favoring niche content and reduced legal fears for creators, though representations often emphasized urban, elite experiences rather than diverse realities.[122][123]In mainstream Bollywood and television, progress remained constrained, with queer characters frequently tokenized or resolved through heteronormative outcomes, reflecting entrenched conservative sensibilities among producers and audiences. One year post-judgment, critics noted scant authentic portrayals, attributing this to commercial risks in a market where family-oriented films dominate box-office revenues exceeding ₹10,000 crore annually. Advertising also saw tentative inclusions, such as brands like Tata and Godrej extending symbolic support via inclusive campaigns, yet these were critiqued as superficial corporate gestures amid ongoing societal homophobia.[124][125]Broader public discourse intensified cultural tensions, pitting legal progress against traditional values rooted in familial honor and religious orthodoxy, with conservative Hindu and Muslim groups framing the ruling as a Western imposition eroding indigenous morality. Urban pride events proliferated, drawing thousands in cities like Mumbai and Delhi by 2019, fostering community solidarity but encountering counter-protests and police scrutiny. Empirical assessments of attitude shifts reveal limited transformation; qualitative studies post-2018 document persistent stigma in rural and semi-urban areas, where familial rejection rates for outing remain high at over 70% in sampled cohorts, underscoring that legal reform has not yet catalyzed widespread normative change.[126][115][127]