MPSC 2022 Prelims Paper-I · Question 85 of 100

Correct — option (2), homosexuality. Section 377 of the Indian Penal Code was headed 'Unnatural offences' and punished voluntary carnal intercourse against the order of nature with any man, woman or animal. On its face the words covered certain sexual acts irrespective of the sexes of the persons involved, but in practice the section was the instrument by which homosexual conduct was criminalised in India, and it is with homosexuality that it is universally associated. The provision is a colonial inheritance: the Indian Penal Code was drafted by the Law Commission under Thomas Babington Macaulay, enacted in 1860 and brought into force in 1862, and Section 377 carried into India a Victorian view of sexual morality that was later exported by the same route to other British colonies. Its modern history is a sequence a candidate should be able to recite. In Naz Foundation v. Government of NCT of Delhi in 2009 the Delhi High Court read the section down so that it would not apply to consensual sexual acts between adults in private. In Suresh Kumar Koushal v. Naz Foundation in 2013 the Supreme Court set that judgment aside and restored the section in full, holding that the question was for Parliament. Finally, in Navtej Singh Johar v. Union of India, decided on 6 September 2018, a five-judge constitution bench unanimously held Section 377 unconstitutional in so far as it criminalised consensual sexual conduct between adults, resting the decision on the rights to equality, to dignity and to privacy. What survived is as important as what fell: the remainder of Section 377 continued to apply to non-consensual acts, to acts involving minors and to bestiality, so the section was read down rather than erased. Two further points complete the picture. The word 'homosexuality' does not appear in the section at all — the question is testing the subject the provision is known for, not its language. And the Indian Penal Code itself has since been replaced: the Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024, so a candidate today should know Section 377 as a provision of the repealed Code whose leading case remains good law. The answer to be marked is option (2).

• (1)Temple entry — Temple entry is not a subject of the Indian Penal Code at all, which is why this option is wrong in kind rather than in detail. Access of the so-called untouchable castes to Hindu temples was fought out through a different body of law entirely: proclamations and Acts of the princely states and provinces, of which the Travancore Temple Entry Proclamation of 1936 and the Bombay Harijan Temple Entry Act of 1947 are the best known; then Article 25(2)(b) of the Constitution, which permits the State to make law providing for the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus; and then the Untouchability (Offences) Act, 1955, renamed the Protection of Civil Rights Act in 1976, which made the enforcement of any disability arising out of untouchability an offence. In Maharashtra the subject is remembered chiefly through Sane Guruji's fast at Pandharpur from 1 to 11 May 1947, at the end of which the doors of the Vitthal temple were opened. Section 377 has no connection with any of this.
• (3)Adultery — Adultery was indeed an offence under the Indian Penal Code, but under Section 497, not Section 377, and this option exists to test whether the candidate has the two numbers apart. Section 497 punished a man who had sexual intercourse with the wife of another man without that man's consent, with imprisonment of up to five years; the wife was not punishable even as an abettor, and under Section 198(2) of the Code of Criminal Procedure only the aggrieved husband could set the law in motion. In Joseph Shine v. Union of India, decided on 27 September 2018 by a five-judge bench, the Supreme Court struck the section down as archaic, arbitrary and paternalistic, holding that it treated a wife as the property of her husband and violated her autonomy, dignity and privacy. Note the coincidence of dates that makes the confusion easy: Section 377 was read down on 6 September 2018 and Section 497 was struck down three weeks later, both by constitution benches, and both cases are cited together in any account of that year.
• (4)Surrogacy — Surrogacy has never been a subject of the penal law in India in the way this option suggests. It was for years governed only by guidelines for assisted reproductive technology clinics, which allowed a large commercial surrogacy industry to grow, and it was then brought under dedicated legislation — the Surrogacy (Regulation) Act, 2021, which permits altruistic surrogacy in defined circumstances and prohibits commercial surrogacy, together with the parallel statute regulating assisted reproductive technology. Restrictions had begun earlier, with foreign homosexual couples and single parents barred in 2013 and commercial surrogacy for foreign nationals stopped in 2015. The point of the option is that a candidate who knows only that Section 377 concerns sexual matters may reach for any subject in that field; the discipline required is to attach the number to the specific subject, and Section 377 is the unnatural offences provision under which homosexual conduct was prosecuted.

Section 377 of the Indian Penal Code was one of a small group of provisions that survived from 1860 into the twenty-first century and then fell to constitutional challenge. Its language — carnal intercourse against the order of nature — was deliberately vague and its practical effect was to make homosexual conduct criminal, with a punishment extending to imprisonment for life. The litigation that ended it is a case study in how constitutional interpretation moves. In 2009 the Delhi High Court in Naz Foundation held that the section, so far as it covered consensual acts between adults in private, violated Articles 14, 15 and 21. In 2013 the Supreme Court in Suresh Kumar Koushal reversed that ruling, observing that only a minuscule fraction of the population was affected and that repeal was a matter for the legislature. The ground then shifted: in 2017 a nine-judge bench in K. S. Puttaswamy held privacy to be a fundamental right under Article 21 and expressly doubted the reasoning in Koushal. On 6 September 2018 a five-judge bench in Navtej Singh Johar unanimously held Section 377 unconstitutional to the extent that it criminalised consensual sexual conduct between adults, while leaving the section standing for non-consensual acts, acts with minors and bestiality. The same year produced two other decisions of the same family — Joseph Shine on adultery under Section 497 and the Sabarimala judgment on entry to a temple — so that 2018 is a year worth learning as a block. The Indian Penal Code has since been replaced by the Bharatiya Nyaya Sanhita, 2023, in force from 1 July 2024.

MPSC papers test the well-known sections of the criminal law by number, and they do it in the simplest possible way: give the number, ask for the subject, or give the subject and ask for the number. The sections that recur are few and can be listed — 124A on sedition, 302 on murder, 376 on rape, 377 on unnatural offences, 497 on adultery, 498A on cruelty to a married woman — and the return on learning them as a short table is disproportionate to the effort. What raises the difficulty in this question is that all four options belong to the same broad territory of law, morality and personal life, so a candidate who has a vague sense that Section 377 is about sex has no way to choose between homosexuality, adultery and surrogacy. The second habit worth building is to attach the leading case to each section, because a commission that has asked for the subject one year will ask for the judgment the next: Navtej Singh Johar for 377, Joseph Shine for 497, Shreya Singhal for the repealed Section 66A of the Information Technology Act. This particular item was set in a paper written in August 2022, when both 2018 judgments were still recent and heavily reported, and it is a reminder that the Commission's current affairs draws on legal news as readily as on schemes and appointments.

• Section 377 of the Indian Penal Code, headed 'Unnatural offences', punished carnal intercourse against the order of nature and was the provision under which homosexual conduct was criminalised in India; the word homosexuality does not appear in its text.
• The Indian Penal Code was drafted by the Law Commission under Macaulay, enacted in 1860 and brought into force in 1862, so Section 377 is a colonial inheritance rather than an Indian innovation.
• In Navtej Singh Johar v. Union of India, decided on 6 September 2018, a five-judge bench of the Supreme Court unanimously held Section 377 unconstitutional in so far as it criminalised consensual sexual conduct between adults; the section survives for non-consensual acts, acts involving minors and bestiality.
• The earlier steps were Naz Foundation v. Government of NCT of Delhi in 2009, in which the Delhi High Court read the section down, and Suresh Kumar Koushal v. Naz Foundation in 2013, in which the Supreme Court restored it in full.
• Adultery was a separate offence under Section 497 of the Indian Penal Code, struck down in Joseph Shine v. Union of India on 27 September 2018; the Indian Penal Code itself was replaced by the Bharatiya Nyaya Sanhita, 2023 with effect from 1 July 2024.

• Confusing Section 377 with Section 497, since both were sexual-morality provisions of the same Code struck down or read down within three weeks of each other in 2018
• Believing that the 2018 judgment repealed Section 377 entirely, when the section continues to apply to non-consensual acts, acts with minors and bestiality
• Assuming that any subject connected with personal or sexual life must be found in the Indian Penal Code, when temple entry and surrogacy are governed by wholly separate statutes
• Attributing the 2009 reading down to the Supreme Court; it was the Delhi High Court in Naz Foundation, and the Supreme Court reversed it in 2013 before changing course in 2018

Legal provisions appear in MPSC papers as one-mark identification questions rather than as problems in interpretation: the section number and its subject, the Article of the Constitution and its content, the Act and the year of its enactment, or the name of a judgment and what it decided. Sections of the Indian Penal Code that have been the subject of public controversy are the ones that recur, because they enter the general reading of a candidate through the newspapers rather than through a law textbook. The Commission also likes to build a question in which every option is drawn from the same area of law, as here, so that a general sense of the subject is not enough. A candidate should therefore prepare a short table of famous sections with their subjects and their leading cases, and should extend it now to the corresponding provisions of the Bharatiya Nyaya Sanhita, 2023, which has replaced the Indian Penal Code and is already generating questions of its own.

No directly related past PYQ was found.

• practice — not a real PYQ

  In Navtej Singh Johar v. Union of India (2018), what exactly did the Supreme Court hold with regard to Section 377 of the Indian Penal Code ?

  • (a)It struck down the entire section, so that no conduct described in it remains an offence
  • (b)It held the section unconstitutional only in so far as it criminalised consensual sexual conduct between adults
  • (c)It upheld the section in full and left the question to Parliament
  • (d)It transferred the subject to the State legislatures under the Seventh Schedule

  Answer(b) It held the section unconstitutional only in so far as it criminalised consensual sexual conduct between adults. The five-judge bench delivered its judgment on 6 September 2018, and the elements of Section 377 dealing with non-consensual acts, acts involving minors and bestiality remained in force. Option (3) describes the earlier decision in Suresh Kumar Koushal v. Naz Foundation (2013), which the 2018 bench overruled after the nine-judge privacy judgment in K. S. Puttaswamy had undermined its reasoning.

• practice — not a real PYQ

  Which section of the Indian Penal Code dealt with adultery, and in which case was it struck down ?

  • (a)Section 377, in Navtej Singh Johar v. Union of India
  • (b)Section 497, in Joseph Shine v. Union of India
  • (c)Section 498A, in Arnesh Kumar v. State of Bihar
  • (d)Section 124A, in Kedar Nath Singh v. State of Bihar

  Answer(b) Section 497, in Joseph Shine v. Union of India. The section punished a man who had intercourse with another man's wife without that husband's consent, exempted the woman from prosecution altogether, and allowed only the aggrieved husband to complain under Section 198(2) of the Code of Criminal Procedure. A five-judge bench struck it down on 27 September 2018 as archaic and paternalistic, while holding that adultery remains a ground for divorce under civil law.