The Delhi High Court on Tuesday queried the central government’s rationale for omitting provisions similar to the erstwhile Section 377 of the Indian Penal Code in the newly enacted Bhartiya Nyay Sanhita (BNS), which has replaced the IPC from July 1, 2024. The court emphasized the legislative gap concerning non-consensual unnatural sexual acts.
During the hearing of a public interest litigation (PIL) filed by lawyer Gantavya Gulati, who represented himself, the bench comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gedela highlighted the urgent need to address the legal vacuum created by the absence of such provisions. The petition stresses that this oversight leaves the LGBTQ community, among others, vulnerable to sexual crimes without explicit legal recourse.
“Where is that provision? There has to be something. 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 offenceโฆ,” remarked Acting Chief Justice Manmohan. The court has allowed the Centre’s counsel, Anurag Ahluwalia, time until August 28 to clarify the government’s position and strategy regarding this legislative omission.
Ahluwalia responded by stating the complexity of enacting a new provision and mentioned that he had escalated the matter to senior levels of the government for thorough consideration. He emphasized the judiciary’s limited role in influencing legislative processes, asserting, “It is not a new avatar of the Act, it is a new Actโฆhow much the courts can interfere is something which has to be seen.
The PIL specifically targets the legal deficiencies left by the non-inclusion of a law akin to Section 377, which, after the Supreme Court’s landmark ruling, decriminalized consensual homosexual acts but continued to penalize non-consensual sexual acts, sexual activities against minors, and bestiality. The absence of such a provision in the BNS, the petitioner argues, significantly undermines the legal protections for individuals subjected to non-consensual sexual acts.
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As an interim measure, Gulati has requested the court to direct the provisional revival of criminalization of non-consensual sexual acts under the framework of the old Section 377 until the petition is resolved. The plea also urges the Centre to amend the BNS to explicitly criminalize non-consensual unnatural sexual acts, ensuring that victims have a clear legal pathway to seek justice.
