The Delhi High Court Today (13 Aug) sought Central government’s stand on a Public Interest Litigation (PIL) petition challenging the exclusion of provision to punish acts of non-consensual sodomy or other ‘unnatural’ sexual relations with any person (man or woman) under the Bharatiya Nyaya Sanhita (BNS). High Court asked Central government if there is no provision in the new law, is non-consensual sodomy still an offence?
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NEW DELHI: The Delhi High Court sought the Central government’s response to a Public Interest Litigation (PIL) challenging the omission of provisions to penalize acts of non-consensual sodomy or other ‘unnatural‘ sexual relations with any person, whether man or woman, under the newly enacted Bharatiya Nyaya Sanhita (BNS).
The case was heard by a Division Bench comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gedela.
The bench granted time until August 27 to the Central Government Standing Counsel (CGSC) Anurag Ahluwalia to obtain necessary instructions on the matter.
During the hearing, the Bench expressed concern over the absence of specific provisions in the new criminal code to address such offenses.
“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,”
-the Bench remarked.
Ahluwalia responded by stating that he had escalated the matter to the highest levels and would return with instructions. He said,
“We will obtain instructions without issuing notice. Even if there is any anomaly or omission… How much the courts can interfere is also to be seen as it is a new Act. I have escalated this at the highest level.”
Previously, Section 377 of the now-repealed Indian Penal Code (IPC) prescribed life imprisonment or a ten-year jail term for those voluntarily engaging in-
“carnal intercourse against the order of nature with any man, woman or animal.”
However, in 2018, the Supreme Court in its landmark Navtej Singh Johar judgment decriminalized consensual sexual acts under Section 377 IPC. The Court clarified that-
“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.”
With the enactment of the BNS in July this year, the IPC was replaced, and the absence of any provision equivalent to Section 377 has sparked criticism.
Experts have pointed out that the BNS leaves no legal recourse if a man or a transgender person is subjected to rape or other non-consensual sexual acts.
The Delhi High Court was addressing a plea filed by advocate Gantavya Gulati, who argued that the new legislation has created a legal void.
“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 incorporate explicit provisions criminalising non-consensual sexual acts. Interim relief is indispensable to forestall irreparable harm to vulnerable individuals and communities and to uphold the inviolable fundamental rights and public safety,”
-Gulati contended.
The court’s consideration of the petition reflects the ongoing debate over the adequacy of the new legal framework to protect individuals from non-consensual sexual acts, particularly in the absence of provisions that were previously covered under Section 377 of the IPC.
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