The PIL was brought before a division bench comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gedela today, with the Court agreeing to hear the matter Tomorrow.
NEW DELHI: Today (12th Aug): A Public Interest Litigation (PIL) has been submitted to the Delhi High Court challenging the exclusion of a provision to penalize acts of non-consensual sodomy or other ‘unnatural’ sexual relations under the Bharatiya Nyaya Sanhita (BNS).
READ ALSO: Husband’s Unnatural Sex With Wife Not Amount To Rape: Madhya Pradesh HC
The plea was brought before Acting Chief Justice Manmohan and Justice Tushar Rao Gedela for urgent listing, and the bench indicated it would be heard on Tuesday, provided everything is in order by the afternoon.
Section 377 of the former Indian Penal Code (IPC) had previously imposed penalties of life imprisonment or ten years in jail for those who voluntarily engaged in “carnal intercourse against the order of nature with any man, woman, or animal.”
However, the Court also clarified that “the provisions of Section 377 will continue to apply to non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.”
READ ALSO: Madhya Pradesh High Court Rules on IPC Section 377
In July of this year, the BNS replaced the IPC.
Critics have noted that the BNS lacks a provision criminalizing non-consensual acts of “unnatural sex,” raising concerns that there is no legal recourse for men or transgender individuals who are victims of rape.
The Delhi High Court in the Naz Foundation case and the Supreme Court in Navtej Johar emphasized that consent is crucial in determining the criminality of sexual acts beyond what has traditionally been viewed as ‘natural.’
Rather than invalidating Section 377, both courts ruled that consensual acts under this section would not be criminalized, leaving only non-consensual sexual acts under Section 377 as punishable offenses.
Between the Naz Foundation decision and the Navtej Johar ruling, several significant developments influenced the legal perspective on sexual acts.
Firstly, the Supreme Court recognized the rights of transgender individuals to be identified based on their self-identified gender. This was solidified in the Transgender Persons (Protection of Rights) Act of 2019, which allows a transgender person to obtain a transgender certificate and, subsequently, a male or female certificate.
The Act explicitly addresses sexual abuse in Section 18, with penalties of up to two years of imprisonment, a fine, or both.
The term “unnatural sex” is now understood to include penile penetrative sex between a man and a woman, a man and another man, a transgender person with a man or woman, and between humans and animals.
Secondly, the Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012, making it a gender-neutral law. Any sexual activity involving a minor (under eighteen years of age), whether a boy, girl, or transgender child, is considered an offense under POCSO. Consent is irrelevant, as a minor cannot legally consent.
Thirdly, in 2013, the definition of rape under Sections 375 and 376 of the IPC was revised. While still gender-specific—only a man can legally rape a woman—the scope of the acts covered was expanded beyond penile–vaginal penetration to include:
(a) Penetration by a man of his penis into a woman’s vagina, mouth, urethra, or anus, or making her do so with him or another person.
(b) Insertion of any object or body part, other than the penis, into a woman’s vagina, urethra, or anus, or making her do so with him or another person.
(c) Manipulation of any part of a woman’s body to cause penetration into her vagina, urethra, anus, or any other body part, or making her do so with him or another person.
(d) Applying his mouth to a woman’s vagina, anus, or urethra, or making her do so with him or another person,
against her will or without her consent.
READ ALSO: Parliamentary Panel Recommends Reinstating Adultery Law and Section 377
Under Section 377 IPC, non-consensual penile penetrative sex involving a man or a transgender person was punishable with imprisonment of up to ten years or life, and a fine.
This context is crucial in understanding the implications of the omission of Section 377 from the Bharatiya Nyaya Sanhita (BNS).
Chapter V of the BNS addresses offenses against women and children, with Sections 63 to 73 focusing on sexual offenses. However, there is no equivalent to Section 377 IPC. With its removal in the BNS, men and transgender individuals subjected to non-consensual penile penetrative sex are left without legal recourse, as such acts are no longer classified as offenses.
Additionally, there is no legal provision against sexual acts involving an animal by a man, woman, or transgender person.
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