Today, On 28th August, The Delhi High Court gave the Centre six months to address the exclusion of ‘unnatural offences’ from the Bharatiya Nyaya Sanhita (BNS). The Court expressed concern, pointing out that even non-consensual acts are no longer punishable, stating, “There can’t be a vacuum when it comes to an offence.”
New Delhi: The Delhi High Court, On Wednesday, instructed the Central government to swiftly make a decision regarding the inclusion of a provision to penalize non-consensual sodomy or ‘unnatural’ sexual relations under the Bharatiya Nyaya Sanhita (BNS).
Earlier, a Bench comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gedela requested the Centre’s counsel to seek guidance in response to a Public Interest Litigation (PIL) that challenges the omission of a provision similar to Section 377 of the Indian Penal Code (IPC) in the newly proposed criminal laws.
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During the session, Central Government Standing Counsel (CGSC) Anurag Ahluwalia informed the court that the matter is currently under active consideration by the government, which will adopt a comprehensive approach to it.
The Court noted that there cannot be a gap or absence when it comes to addressing an offence.
The Court observed,
“What people were asking was not to make consensual sex punishable. You made even non-consensual sex not punishable…There can’t be a vacuum to an offence. Suppose something happens outside the court, are we all to shut our eyes because it is not a penal offence in statute books?”
The Court emphasized the urgency of the situation, stating that the government must recognize its importance.
The Court added,
“If it requires an ordinance, that can also come. We are also thinking aloud. Since you are indicating some problems, the process will likely take a long way. We are just thinking aloud,”
The Bench ultimately directed the government to consider the PIL as a formal representation and to make a decision “as expeditiously as possible, preferably within six months”.
In the previous hearing, the Court had noted that the new criminal laws completely omit the offence.
The Court stated,
“There is no provision at all. It is not there. There has to be something there. The question is that if it is not there, then is it an offence? If an offence is not there and if it is obliterated, then it is not an offence…Quantum [of punishment] we cannot decide but unnatural sex which is non consensual needs to be taken care of by the legislature,”
Section 377 of the now-repealed IPC previously imposed life imprisonment or a ten-year jail sentence for voluntarily engaging in “carnal intercourse against the order of nature with any man, woman or animal.”
In the landmark 2018 Navtej Singh Johar judgment, the Supreme Court decriminalized consensual sexual acts under Section 377 IPC.
The Supreme Court ruled,
“The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality,”
The BNS, which replaced the IPC in July this year, does not include any provision criminalizing non-consensual acts of “unnatural sex.”
The absence of a Section 377 equivalent in the BNS has faced criticism, with experts pointing out that there is now no provision to invoke in cases where a man or a transgender person is subjected to rape.
Read Also: Centre to Amend BNS for Sexual Crimes Against Men and Transgender People
The High Court today addressed a plea filed by Advocate Gantavya Gulati, who argued that the new laws have created a legal gap.
Gulati contended,
“The substantive relief sought includes a declaration that the repeal of Section 377 IPC, without incorporating equivalent provisions in the BNS, is unconstitutional, and a mandate directing the Union of India to amend the BNS to include explicit provisions criminalizing non-consensual sexual acts. Interim relief is essential to prevent irreparable harm to vulnerable individuals and communities and to uphold fundamental rights and public safety,”
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