The Supreme Court on Monday dismissed a petition seeking to reintroduce penal provisions similar to those of IPC Section 377 in the new Bharatiya Nyay Sanhita (BNS), which has replaced the Indian Penal Code (IPC). The bench, led by Chief Justice D.Y. Chandrachud and including Justices J.B. Pardiwala and Manoj Misra, stated that such legislative matters squarely fall within the purview of Parliament and not the judiciary.
The petition, filed by Pooja Sharma, aimed to address what was termed an “exigent legal lacuna” following the BNS’s enactment, which took effect on July 1, 2024. Sharma argued that the omission of specific provisions for punishing non-consensual “unnatural sex” leaves victims without adequate legal recourse, which had been previously available under Section 377 of the IPC.
Chief Justice Chandrachud emphasized, “We can’t compel Parliament to introduce laws. We can’t create an offence… This court under Article 142 cannot direct that a particular act constitutes an offence. Such exercises fall under the parliamentary domain.” The court, however, permitted Sharma to make a representation to the government regarding this issue.
The plea’s dismissal continues the trajectory set by the Supreme Court’s landmark decision on September 6, 2018, which decriminalized consensual same-sex relationships between adults, previously punishable under Section 377. This earlier ruling had been celebrated as a significant step towards LGBTQ+ rights in India.
The BNS, which was designed to modernize and replace the colonial-era IPC, has sparked debate regarding its handling of offences previously categorized under Section 377. In August 2024, the Delhi High Court had also addressed this issue, prompting the Centre to clarify its stance on the exclusion of these provisions, underscoring the legislative body’s responsibility to address non-consensual acts.
