Today, On 14th October, The Supreme Court rejected a plea challenging the exclusion of a provision similar to IPC Section 377 in the new BNS law. The petitioners argued for the inclusion of a clause addressing unnatural offenses, but the court dismissed the request. The decision reflects the court’s stance on not reintroducing a repealed provision in new laws.
New Delhi: The Supreme Court on Monday declined to entertain a petition challenging the exclusion of penal provisions related to unnatural sex and sodomy from the Bharatiya Nyay Sanhita (BNS), which replaced the Indian Penal Code (IPC).
A bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra stated that the matter falls within the jurisdiction of Parliament, and the Court cannot issue directives on such legislative issues.
Allowing the petitioner to present the issue to the government, the bench remarked,
“We can’t compel Parliament to introduce laws. We cannot create an offence… This court, under Article 142, cannot direct that a particular act constitutes an offence. Such matters fall under the parliamentary domain,”
Section 377 of the IPC criminalized non-consensual “unnatural sex” between adults, sexual acts involving minors, and bestiality. However, on September 6, 2018, the Supreme Court decriminalized consensual same-sex relationships. The BNS, which replaced the IPC, took effect on July 1, 2024.
The Court was hearing a plea by Pooja Sharma, who sought to address what she referred to as a “legal lacuna” resulting from the enactment of the BNS.
The plea argued that,
“The omission by the respondent (authorities) leaves victims of non-consensual unnatural sex without any adequate legal remedy, which previously aligned with the gravity of the offence under Section 377 of the IPC.”
In August 2024, the Delhi High Court had asked the Centre to clarify its position on the exclusion of penal provisions for unnatural sex and sodomy in the newly introduced Bharatiya Nyay Sanhita (BNS), which replaced the IPC, emphasizing that the legislature needs to address the issue of non-consensual unnatural sex.
Section 377 of the Indian Penal Code (IPC) historically criminalized non-consensual “unnatural sex,” sexual acts involving minors, and bestiality. However, in a landmark judgment on September 6, 2018, the Supreme Court decriminalized consensual same-sex relationships between adults, while retaining penalties for non-consensual acts and those involving minors or animals.
In 2024, with the introduction of the Bharatiya Nyay Sanhita (BNS), which replaced the IPC, the penal provisions previously found in Section 377 for unnatural sex and sodomy excluded. This exclusion has sparked legal challenges, with petitioners arguing that it leaves victims of non-consensual unnatural sex without sufficient legal remedies that had been provided under Section 377.
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