Decide on exclusion of penalty for unnatural sex in BNS: HC to Centre

The Delhi high court on Wednesday directed the Centre to treat as representation a PIL against exclusion of penal provisions for the offences of unnatural sex and sodomy from the Bhartiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code.

A bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gelela asked the Central government to expeditiously decide the representation, preferably within six months.

The court disposed of the petition and granted liberty to the petitioner to approach the court for revival of plea in case there is a delay on the government's part to decide his representation.

The court was hearing a PIL by Gantavya Gulati, a lawyer who was appearing in person, seeking to address the "exigent legal lacuna" resulting from the enactment of the BNS which has also led to the repeal of section 377 of the Indian Penal Code (IPC).

The bench passed the order after the central government standing counsel Anurag Ahluwalia submitted that the issue was under consideration and a holistic view will be taken which will require some time.

The court said there can't be a vacuum to an offence and what if some offence of this nature happens today. If there is a vacuum then the offence may fall under the provision of causing bodily harm for the time being, it said.

“What people were asking was not to make consensual (unnatural) sex punishable. You made even non-consensual (unnatural) sex non punishable. Suppose, something happens outside the court today, are we all to shut our eyes because it is not a penal offence in the statute books?” the bench said.

It pointed out that there is an urgency in the matter and the government must understand it.

“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 said.

During the hearing, the Centre's counsel handed over a letter written to him by the Joint Secretary, Government of India, on the issue.

The counsel said some time is needed for deliberations as views of all the stakeholders have to be taken and added that there can't be fixed timelines on these kind of issues.

The petitioner submitted that the BNS excludes any provision equivalent to section 377 of the IPC due to which every person, especially lesbian, gay, bisexual, transgender and queer (LGBTQ) community, will be affected. He also flagged alleged atrocities against those from the LGBTQ community.

Section 377 of the repealed IPC punished non-consensual unnatural sex between two adults, sexual activities against minors, and bestiality.

The BNS, which replaced the Indian Penal Code (IPC), came into force from July 1, 2024.

The plea said after the Supreme Court's judgement, section 377 decriminalised consensual homosexual acts and only criminalised non-consensual sexual acts, and its absence in the BNS has engendered a critical void in legal protection, disproportionately affecting vulnerable communities.

As an interim relief, the petitioner has sought a directive to provisionally revive criminalisation of non-consensual sexual acts as previously encapsulated in section 377 of the IPC till pendency of the petition. He contended that there is no legal recourse if a man is sexually assaulted by another man and no FIR can be filed under the new law.

The plea sought a direction to the Centre to amend the BNS to incorporate explicit provisions criminalising non-consensual unnatural sexual acts.