The thoughtless Section 377 IPC oversight in the BNS

The deletion of Section 377 of the Indian Penal Code from the new penal code, the Bharatiya Nyaya Sanhita, has raised a lot of questions. What is the actual impact?

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Section 377 of the Indian Penal Code, as it originally stood, was interpreted to punish men and women and for the act of "unnatural sex".

Unnatural sexual acts were held to be penetrative penile–non-vaginal sexual acts, that is penile–oral, penile–anal sex and sexual acts between human beings and animals.

The rationale was that sex was only for procreation— to beget children. "Unnatural sex" does not beget children. That is why it was supposed to be "unnatural".

Consent was irrelevant

The Delhi High Court in Naz Foundation and the Supreme Court in Navtej Johar held that consent was relevant when it comes to defining the criminality of sex other than what had traditionally been perceived as 'natural'.

Instead of striking down Section 377, the two courts held in the two cases that if acts covered by Section 377 were consensual they would not be criminal. Thus, the net result is that only non-consensual sexual acts covered by Section 377 remain punishable.