The Delhi High Court, on Wednesday, directed the Central Government to consider a Public Interest Litigation (PIL) challenging the omission of penal provisions for unnatural sex and sodomy in the Bhartiya Nyaya Sanhita (BNS), which recently replaced the Indian Penal Code (IPC). The bench, comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gelela, instructed the government to expediently decide on the plea, ideally within the next six months.
The PIL, filed by lawyer Gantavya Gulati who represented himself, highlights a concerning legal void following the enactment of the BNS and the consequent repeal of Section 377 of the IPC. This section previously addressed non-consensual unnatural sex among other issues. The court acknowledged the urgency of the matter, stressing that the absence of such provisions could lead to legal ambiguities in handling offences of this nature today.
During the session, Central Government’s counsel Anurag Ahluwalia conveyed that the issue was under comprehensive review but noted that resolving it might require time due to the need to consider various stakeholder perspectives. The bench responded with the suggestion that if necessary, an ordinance could be introduced to expedite the process.
The court also granted the petitioner the liberty to reactivate his plea should the government fail to address the representation timely. It emphasized the importance of having a statutory provision to tackle non-consensual unnatural sexual acts and expressed concern over the potential implications of a legal vacuum in this area.
Justice Manmohan pointedly remarked, “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 petitioner argued that the exclusion of a provision equivalent to Section 377 impacts everyone, particularly affecting members of the LGBTQ community, and cited instances of alleged atrocities against them. He sought interim relief to provisionally reinstate the criminalization of non-consensual sexual acts as delineated in the now-repealed Section 377 until the petition is resolved.
