REVIVAL OF SECTION 377 IPC, 1860 IN THE BHARATIYA NYAYA SANHITA, 2023

S. 377 of IPC, 1860 dealt with unnatural offences and provided legal protection for non-consensual sexual activity in the same sex, bestiality, etc.This paper only deals with criminalisation of non-consensual sexual activity in the same sex. The introduction of the BNS, 2023 has omitted certain sections from the now repealed IPC, 1860. One of the main contentious exclusions is that of the legal protection provided against non-consensual sexual acts between the same gender. This exclusion has caused a variety of issues as there is no recourse or punishment for non-consensual sexual activity between the same sex under any the BNS or any Special Law. The same can be seen when the Supreme Court in August 2024 came out with a decision in a case of non-consensual sexual activity in the same sex, stating that they don’t have jurisdiction to compel the Parliament to make laws regarding this issue but at the same time they also acknowledge that there is a lacuna in this regard. In the foreign context there are various countries that have laws governing this aspect. The UK has the Sexual Offences Act, 2008 which provides a gender neutral definition to the offence of rape and therefore prevents any non-consensual sexual acts between the same sex. In the US the laws are made adhering to the 14th Amendment which provides for equality and therefore it criminalises sexual acts done without consent irrespective of gender. In the light of the same it is recommended that there should be an inclusion of a new provision in the BNS, 2023 which will criminalise non-consensual sexual activity among the same sex and therefore provide a much needed protection to the LGBTQIA+ community in India.