The Vanishing Offence: Non-Consensual Unnatural Sex and the Legislative Vacuum in the Bharatiya Nyaya Sanhita, 2023

On 1 July 2024, the Bharatiya Nyaya Sanhita, 2023 came into force, replacing the Indian Penal Code, 1860 in its entirety. In doing so, the Sanhita repealed Section 377 of the IPC—the provision under which Indian criminal law had, for over a century and a half, criminalised "carnal intercourse against the order of nature." The Supreme Court in Navtej Singh Johar v. Union of India had read down Section 377 only insofar as it criminalised consensual same-sex relations between adults; the Court expressly preserved the provision's application to non-consensual acts, acts on minors, and bestiality. The BNS's blanket repeal, unaccompanied by any equivalent provision, has produced what the Delhi High Court has described as a "vacuum" in the criminal law: adult male victims of sexual assault, transgender victims of sexual violence, and—on one reading of the statute—wives subjected to non-vaginal sexual violence by their husbands now stand outside the protection of the principal penal code. This article maps the architecture of the vacuum, traces it through the doctrinal history of Section 377 and the Sanhita's drafting record, evaluates the constitutional consequences against Articles 14, 15, and 21, and surveys comparative responses in the United Kingdom, Canada, and South Africa. It concludes that the vacuum is constitutionally untenable and proposes a calibrated reform pathway combining legislative amendment, executive notification, and Article 142 interim safeguards. The Supreme Court's recent reluctance, in Pooja Sharma v. Union of India, to issue any direction does not, on the analysis offered here, foreclose a more carefully constructed challenge.