Delhi High Court restored a PIL highlighting absence of legal protection under BNS for non-consensual unnatural sex. Court pulled up Centre for delay, saying decision is “nowhere in sight” even after 1.5 years.
New Delhi, March 20 — The Delhi High Court on Friday expressed concern over the Central government’s delay in taking a decision on framing legal provisions to deal with non-consensual unnatural sex, similar to the earlier Section 377 of the Indian Penal Code (IPC). The Court noted that despite clear directions issued earlier, no concrete decision has been taken even after a significant passage of time.
A bench comprising Chief Justice D.K. Upadhyaya and Justice Tejas Karia restored a Public Interest Litigation (PIL) filed by petitioner Gantavya Gulati. The plea had earlier been disposed of in August 2024 after the Court directed the Centre to examine the issue and take a decision within a reasonable time frame, preferably within six months.
While restoring the petition, the Court observed,
“The direction for consideration and taking a decision on the representation was issued by the court on August 28, 2024. A time period of one and a half years can be safely said to be reasonable time to take any decision. However, the decision is nowhere in sight. In view of the aforesaid, the writ petition is restored to its original number.”
The petitioner argued that there is currently a serious legal gap, especially affecting the LGBTQ community, as there is no specific provision in the Bharatiya Nyaya Sanhita (BNS) that addresses non-consensual unnatural sexual acts. This, according to the plea, leaves victims without adequate legal protection or remedy in such cases.
During the hearing, the counsel appearing for the Central government submitted that the matter involves a “sensitive issue” and requires careful consideration. The government informed the Court that it has already sought inputs from various stakeholders and is in the process of evaluating different perspectives before taking a final decision. The counsel further added that arriving at a comprehensive and balanced view will take time, particularly because a “fresh view” is being considered.
Taking note of the delay, the High Court directed the Centre to file a detailed affidavit explaining the steps taken so far to comply with its earlier order. The bench ordered,
“Let an affidavit be filed by the respondent as to what steps have been taken to ensure compliance of the order dated August 28, 2024 within a period of four weeks.”
The matter has now been listed for further hearing in May.
The PIL highlights that Section 377 of the IPC, before being read down by the Supreme Court, criminalised certain sexual acts, including non-consensual unnatural sex, acts involving minors, and bestiality. While consensual homosexual acts between adults were decriminalised, the provision continued to serve as a safeguard against non-consensual acts.
However, with the introduction of the Bharatiya Nyaya Sanhita (BNS), which came into force on July 1, 2024 replacing the IPC, there is no equivalent provision addressing such offences. The petitioner contends that this omission has created a significant legal vacuum, particularly impacting vulnerable groups, including members of the LGBTQ community.
The plea stresses that without a clear legal provision, victims of non-consensual unnatural sexual acts may face challenges in seeking justice, thereby weakening the overall framework of criminal law protection in India.
The case now raises important questions about legislative responsibility, protection of individual rights, and the need for inclusive criminal law reforms in the evolving legal landscape.
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