The introduction of three new codes of criminal law in India which will replace the IPC 1860, the CrPC 1973, and the Indian Evidence Act 1872 respectively, with the coming of Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita 2023, and the Bharatiya Sakshya Adhiniyam 2023 is a long-awaited reform of the Indian criminal justice system. The government has portrayed these new amendments as the ones meant to modernize the archaic Indian structure in tune with the times and for the delivery of effective justice.

These legislative changes have, however, not been accepted in all quarters. Most of the legal scholars, the knowledgeable author as well as many predict the outcome of the new legislation to be mundane, with only syntactical amendments and omissions from the turn of phrases in the other statutes. They also highlighted the speed with which these laws were enacted and how this mustered ample contempt for guidelines on pre-legislative debates or consultations to take place. After coming into force on 1 July 2024, numerous drawbacks have come to light, making news and inviting discussions.

In the debate on various lacunae in these new laws, one important issue has been very inadequately discussed: the non-inclusion of Section 377 of the IPC[1] related to 'unnatural offenses.' This is a grave omission for it could mean gross injustices for non-minor males and eunuchs who might be left without adequate legal protection. The effects of the absence of the criminalizing Section 377 in the latest statute under the Bharatiya Nyaya Sanhita (BNS) bears extreme weight both legally and socially and thus it becomes imperative for all constructs to reexamine these changes with speed.

Historical View
For there to be a better understanding of the effect of the removal of Section 377, one has to look into its background. Section 377 of the IPC was inserted into the code by the British colonialist in 1861. Thus, the provision made 'carnal intercourse against the order of nature' a crime, something that was deliberately vague. The law was formulated based on the principles of Victorian sexuality[2] and the desire, dominant throughout Europe, to impose a strict code of acceptable sexual conduct and morality.

Section 377 of the Indian Penal Code was all-embracing as it encompassed various sexual activities considered by the colonial power as 'unnatural' and included in the same pen accordingly, homosexual consensual relations, bestiality, and other such activities deemed inhuman by the colonial masters.

Section 377 specifically provided the basis for moral policing of society and especially preceded to stigmatize the gay community for over a century. The law allowed discrimination of such people as well as harassment or even violence against them for having contrary sexual preferences to the norm laid by the law. Section 377 justified continued oppression and marginalized the LBGTQ+ people by forcing them to endure their lives in the shadows.

The activism against Section 377 was active from the early 2000s with activists, and organizations questioning the constitutionality of the law. The judgment of the highest priority was given by the Delhi High Court, in 2009 in the case of Naz Foundation v. State (NCT of Delhi)[3] restoring section 377 of the IPC to its non-applicability in consensual same-sex relationship between two adults. Thus, the court stated that Section 377, when it comes to consensual sexual activities between adults of the same sex, is unconstitutional and interferes with the rights of the individual that is right to privacy, dignity, and equality under the Indian constitution.

But this progressive judgment was rather short-lived. In December 2013, the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation[4] disagreed with the Delhi High Court and continued to criminalize consensual same-sex relations under Section 377. This decision by the Supreme Court was widely criticized for its regressive stance and for not uploading the principles of equality and justice.

The battle over Section 377 was added more flavor in 2018 when the highest court of the land, in the case Navtej Singh Johar v. Union of India, [5]mounted a challenge to the constitutional validity of section 377 on multiple grounds, and eventually put an end to the matter in favor of the repeal of Section 377 in consenting adult sexual acts. In giving this provision the court stated that members of the LGBTQ+ community — just as all other persons - have freedom to love and live freely by recognizing their equality, privacy, and dignity. The 2018 Supreme Court Judgment was indeed celebrated as a great win for LGBTQ+ rights and a cornerstone in the construction of a more open-minded and just society.

Impact Of This Removal

Section 377 was formally excluded from the Bharatiya Nyaya Sanhita (BNS) and this has created diverse feelings in the legal fraternity, activists, and members of the LGTBQ+ community. Though the judgment delivered in September 2018 by the Supreme Court decriminalized consensual homosexual acts, however, section 377 was not completely struck down.

The provision still existed where the contact was made through force against the will of the other, including an act involving a minor or an animal. But with the complete exclusion of section 377, the new BNS does not leave guidelines on how to address non-consensual 'unnatural' offences, such as sexual misconduct against non-minor males and persons, who are of the third gender.

This legal loophole is problematic as it creates a major gap in various measures that are aimed at protection of the vulnerable groups. An important aspect left ambiguous by the new BNS is whether it contains a Section 377-like provision or not, while this is not a major issue for most citizens, sexual minorities most definitely face a problem here since the new BNS grants no justice to victims of sexual violence not classified in the official categories of the law. Thus, the failure to have a provision on the non-consensual unnatural acts makes some people mere subjects of the laws without being able to enjoy equality and justice.

Section 377 has also been erased from the law books and the response has prompted criticism to the government's promises to uphold the rights of the LGTBQ+ community. Of course, a decriminalization of homosexual acts in private was a major step, but no clear legal regime of non-consensual unnatural acts shows no proper appreciation of, and intentions regarding, the rights of sexual minorities. The absence of Section 377 could also be seen as an effort to sideline issues pertaining to the rights of the homosexuals, and hence no inclusion in the new legal reforms.

In addition, the absence of Section 377 raises grave question about the government's approach to legal reforms. Excluding such a crucial provision from the BNS raises question and suspicion of how much attention and consultation was given in the formulation of the new laws. Legal reforms must be made with proper analysis of the social needs and interest of the society to provide legal requirement that are fair. This grave omission underline the need for more inclusive approach of legal reform considering the rights and interests of citizens especially those of vulnerable and marginalized groups.

Legal And Social Implications

The removal of Section 377 does not only raise a pertinent legal issue but also the social concern of how such legal changes should be more comprehensive and undergo an evolved understanding of the law. Legally, the removal of Section 377 brings uncertainties on how to enforce the law against unnatural non-consensual acts. This is due to the fact that there are no prosecution clauses that can prompt actions leading to the courts being placed in an impossible situation with regards to the application of the new laws in the case of unnatural non-consensual sexual intercourse. This may cause the kind of conflicting decisions which is abnormal since the law is supposed to be clear for it to work properly.

The exclusion of Section 377 raises alarm about the protection for non-minor males and transgender individuals. Since there is no special provision that protects those groups from unnatural acts to which they did not consent, they are rendered helpless with little legal protection from possible acts of sexual violence. This further proves that non-minor males and transgender persons cannot avail the protection offered by the law because of prejudice and discrimination present in society and that much more needs to be done to bring about change in this legal system.

From the social perspective, the removal of Section 377 shows the society's failure to acknowledge the existence and human rights of LGBTQ+ people. The failure to include a clause that prohibits non-consensual unnatural acts shows that there is a low understanding of the challenges faced by the members of the LGBTQ+ community. The omission of Section 377 could be also seen as a regression in the struggle for Equality and Justice for the members of the LGBTQ+ community.

The non-enforcement of Section 377 raises more general questions about what extent the law can or should shape social values and norms. The acknowledgment of the legal rights of LGBTQ+ persons is very important in challenging bias and discrimination implemented by society and promoting a culture of inclusion and acceptance. The omission of Section 377 brings into sharp relief the need for reforms that are directed at improving the conditions and fulfilling the needs of marginalized sections of the community.

Conclusion
With the aid of the threefold legislations of Bharatiya Nyaya Sanhita, 2023, and the two other criminal laws, India has got an occasion to reform and develop a progressive criminal justice system that can be more inclusive and equitable. That being said, the absence of Section 377 in these reforms raises concern about the government's protection of all people, including those who belong to the LGBTQ+ community.

Legal change must not stop at symbolic initiatives but take seriously the actual issues of marginalized communities. The absence of Section 377 in the amended legal framework is not simply an oversight in legislation; it is a retreat from the battle for equality in regard to non-minor males and transgender persons. Lawmakers ought to take on this issue again and guarantee that the rule of law is protecting the dignity and rights of every single individual in society, including non-minor males and transgender persons. A legitimately fair rule of law must be inclusive and offer protection and recourse to any and all without exception.

The controversy on the repeal of Section 377 rests on the premise that the issue of justice is still very much an issue in the discussions of equality. To move forward on this front as India strives for elliptical legal reform the country must make sure no one is left behind, commanding each citizen's rights to basic security, bodily integrity, and justice. The legal system has to be an embodiment of a society that appreciates the worth of every human and their equal rights regardless of sexual preferences.

Thus, the exclusion of Section 377 from the Bharatiya Nyaya Sanhita is not only a legal matter, it consists of a social problem as well as there are opinions and prejudices. The law is an important institution in using the people's values and fighting prejudice and discrimination. While India progresses to yet other steps in the legal changes, these should not only mirror the social fabric but should transform and support equity, justice, and human integrity.

End Notes:

1. Indian Penal Code, 1860, § 377, No. 45 (India).
2. Durba Mitra, History's Apology: Sexuality and the 377 Supreme Court Decision in India, Epicenter Blog Harvard University (Mar. 1, 2025, 10:45 PM), https://epicenter.wcfia.harvard.edu/
3. Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762.
4. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
5. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.