Deletion of Section 377 IPC in the Bharatiya Nyaya Sanhita, 2023: Constitutional Alignment, Doctrinal Shifts, and Emerging Gaps

Abstract

The enactment of the Bharatiya Nyaya Sanhita (BNS), 2023, marks a significant transformation in India's criminal justice framework by replacing the Indian Penal Code (IPC), 1860. While the reform aims to modernise criminal law, the complete omission of Section 377 of the IPC has generated considerable legal and constitutional debate. Following the Supreme Court's decision in Navtej Singh Johar v. Union of India (2018), Section 377 remained applicable to non-consensual sexual acts, offences involving minors, and bestiality, while consensual same-sex relations between adults were decriminalised. The absence of an equivalent provision in the BNS has created a legislative vacuum, particularly with respect to sexual offences against men, transgender persons, and non-binary individuals, who continue to remain outside the ambit of the gender-specific rape provisions. This article critically examines the legal implications of the repeal of Section 377, analyses the constitutional concerns arising under Articles 14, 19, and 21 of the Constitution of India, and evaluates the ongoing judicial scrutiny in Gantavya Gulati v. Union of India. It argues that the omission of Section 377 has weakened the statutory framework for addressing certain forms of sexual violence and has raised serious concerns regarding equality, dignity, and access to justice. The study concludes by emphasising the need for a gender-neutral legislative framework to ensure comprehensive protection against sexual offences and to eliminate the existing legal vacuum.