The Delhi High Court on Friday took a significant step toward addressing a critical gap in India’s new criminal code, restoring a Public Interest Litigation (PIL) that seeks to criminalize non-consensual unnatural sex.
A division bench comprising Chief Justice D. K. Upadhyaya and Justice Tejas Karia expressed dissatisfaction with the Central Government’s delay, noting that a decision on the matter was “nowhere in sight” despite the passage of a year and a half since the initial court direction.
The petition, filed by Gantavya Gulati, highlights a significant shift in India’s penal landscape following the replacement of the Indian Penal Code (IPC) with the Bharatiya Nyaya Sanhita (BNS) on July 1, 2024.
While the Supreme Court had previously read down Section 377 of the IPC to decriminalize consensual acts between adults, the section remained the primary legal tool to prosecute non-consensual unnatural sex, sexual acts against minors, and bestiality. The petitioner argues that the BNS lacks an equivalent provision, leaving the LGBTQ community and other vulnerable groups without a criminal remedy for such atrocities.
According to the plea, the absence of these protections has “engendered a critical void in legal protection,” disproportionately affecting those who were previously protected by the non-consensual aspects of the now-repealed Section 377.
The matter was originally disposed of in August 2024 with a directive to the Centre to decide on the petitioner’s representation within six months. However, observing the lack of progress, the High Court bench decided to re-open the case.
“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,” the bench observed.
In response, the counsel for the Central Government described the issue as “sensitive” and informed the court that inputs have been invited from various stakeholders. The government maintained that taking a “holistic view” on such a “fresh” legal standpoint would naturally “take some time.”
The High Court has now ordered the Centre to file an affidavit within four weeks detailing the specific steps taken to comply with the court’s earlier order from August 2024.
The court has scheduled the next hearing for May, where it will further examine the government’s progress in addressing the potential legislative gap.
