On July 1, 2024, India’s new criminal law, the Bharatiya Nyaya Sanhita (BNS), came into force, replacing the Indian Penal Code. Parallel to the Supreme Court rulings, the BNS holds many offences that the IPC held but excludes key morality-related crimes.
Notably, the offense of adultery under the IPC section 497 has been removed and Section 377 has been removed in entirety, meaning that private consensual sexual activities, whether within marriage or between same sex partners, is no longer criminal act under the new code, following the precedents of Joseph Shine decriminalizing adultery and Navtej Johar decriminalizing the consensual same sex intimacy (2018).
In parallel, several older provisions carry a new form, to give an example, the BNS section 74 corresponds to the IPC section 354, which talks about assault or criminal force to a woman with the intent to outrage her modesty, and similarly, the BNS Section 79 matches the IPC Section 509, talking about words or gestures insulting the modesty of a woman.
A recent analysis emphasises that while BNS dropped adultery and 377, it retained the offence of penalising a man for enticing or taking away or detaining a married woman with intent for her to have illicit intercourse, which was established as section 498 in the Indian Penal Code.
Landmark Judgments on Privacy and Autonomy
The BNS changes reflect major Supreme Court judgements that acknowledge personal autonomy and privacy. In K.S. Puttaswamy (2017), the court held that the right to privacy is a fundamental right under Article 21 of the Constitution.
Following the court in Navtej the case emphasized that such criminalization relating to consensual sexual conduct violates the equality and privacy of an individual, moreover, in the case of Joseph Shine v. Union of India,the court invalidated the IPC section 497 where the court observed that provision was arbitrary and adultery kept as a crime interferes with the personal lives of individuals, presently, the BNS now inherits this liberal approach by removing these provisions.
Present Ambiguities
While BNS adopts the precedents of the cases discussed above, it still inherits vague language to some extent that may carry broad interpretation. The words like “modesty” and “decency” appear throughout the provisions, yet are not defined, leaving the terms for the courts to interpret. In practice, the courts have reasoned that an act outrages the modesty of a woman if such an act shocks the sense of decency of a woman.
These interpretations rely on the subjective standards of morality and can vary throughout the courts. Similarly, the offences related to obscenity condemn acts that outrage public decency without any clear criteria. The BNS has not touched upon how obscene acts are defined, so moral policing may continue under all these provisions.
Enforcement and Public Morality
In practicality, the police and morality still grapple with these issues, despite legal change. The issue of “moral policing” in this country still continues, for example, in early 2025, a video went viral where a Tamil Nadu police officer deliberately stopped a couple on the beach at night and demanded to know whether they were married or not. The woman clearly objected and told the media that her right to privacy was violated. These kinds of incidents underscore the gap between formal law and practical implementation. Similarly, no law forbids unmarried
The Way Forward
The introduction of the new criminal laws marks a formal victory for personal liberty of consenting adults, and the Supreme Court precedents continue to remind us that the autonomy of citizens needs to be respected, yet the risk of moral policing still lingers. The vigilant application of constitutional privacy rights and public awareness will be key to preventing arbitrary interference.
Author Name- Udit Krishna, Gujarat National Law University
