Delhi HC urges Centre to fill Section 377 gaps in BNS
The Delhi high court on Wednesday suggested that the Union government promulgate an ordinance penalising the offence of forced unnatural sex and sodomy.
The Delhi high court on Wednesday suggested that the Union government promulgate an ordinance penalising the offence of forced unnatural sex and sodomy, even as it granted the Centre six months to take a “holistic view” regarding the exclusion of these offences from the newly enforced penal code, the Bharatiya Nyaya Sanhita (BNS).
A bench of acting chief justice Manmohan and justice Tushar Rao Gedela emphasised that there could not be a vacuum in the law, while the Centre was deliberating on the amendments in the BNS.
The bench suggested the way out after Centre’s counsel Anurag Ahluwalia submitted that the court may consider asking the government to treat the petition challenging the exclusion of penalties for “unnatural sex” and “sodomy” from the BNS, as a representation, to enable the government to take a holistic view. Ahluwalia submitted that the decision-making process would involve consultation from various stakeholders, including parliamentarians as the issue not only dealt with the state but also the public at large.
The counsel further added that the legal provision to penalise non-consensual unnatural sex between adults akin to the the now-altered Section 377 of the Indian Penal Code (IPC) would have to be introduced in the BNS in a new form and the same has to be done with consensus from all parties.
{{/usCountry}}The counsel further added that the legal provision to penalise non-consensual unnatural sex between adults akin to the the now-altered Section 377 of the Indian Penal Code (IPC) would have to be introduced in the BNS in a new form and the same has to be done with consensus from all parties.
{{/usCountry}}Section 377 of the IPC previously imposed life imprisonment or a ten-year sentence for engaging in “carnal intercourse against the order of nature with any man, woman, or animal.” However, in 2018, the Supreme Court, in the landmark case of Navtej Singh Johar Vs Union of India, decriminalised consensual same-sex relations, though the provision continued to criminalize non-consensual acts.
{{/usCountry}}Section 377 of the IPC previously imposed life imprisonment or a ten-year sentence for engaging in “carnal intercourse against the order of nature with any man, woman, or animal.” However, in 2018, the Supreme Court, in the landmark case of Navtej Singh Johar Vs Union of India, decriminalised consensual same-sex relations, though the provision continued to criminalize non-consensual acts.
{{/usCountry}}“The question would be this, what happens in the meanwhile? Can the statue or the legislation countenance such a situation? What they were asking for was with regards to consensual sex. You have made it even non-consensual.. There cannot be a vacuum. Suppose something happens today outside the court, are we to shut our eyes because it is not in statute book? We are just saying expedite it. There is some urgency in the matter, you must understand,” the bench said to Ahluwalia.
{{/usCountry}}“The question would be this, what happens in the meanwhile? Can the statue or the legislation countenance such a situation? What they were asking for was with regards to consensual sex. You have made it even non-consensual.. There cannot be a vacuum. Suppose something happens today outside the court, are we to shut our eyes because it is not in statute book? We are just saying expedite it. There is some urgency in the matter, you must understand,” the bench said to Ahluwalia.
{{/usCountry}}The bench added, “You can always apply your mind. If it requires an ordinance, in the meanwhile, it can come. It depends. We are also thinking aloud.”
The court also opined that a holistic view was also required with regards to the BNS only specifying the gender of the victim as a woman, while making the “perpetrator” , gender neutral. “The whole problem is, there is a slight difference with approach. Victim is only regarded as a woman under the IPC now. We require not just this change but other changes also. They (Centre) are right to a certain extent that a holistic approach may be required. The term perpetrator is gender neutral but not the victim. Victim remains the lady. Holistic approach may be required and thus let them examine it,” the bench said.
The plea, filed by advocate Gantavya Gulati, stated that the omission of a provision penalizing unnatural sex poses a significant risk, particularly to the LGBTQ community. Gulati asserted that the absence of such a law in the BNS creates a legal void, leaving vulnerable communities without adequate protection.
In his petition, Gulati urged the court to either restore the criminalisation of non-consensual sexual acts under a provision like Section 377 or adopt a gender-neutral interpretation of the laws dealing with rape. He highlighted that the current draft of the BNS offers no remedy for a man sexually assaulted by another man, leaving victims without the ability to file a first information report (FIR).
On August 13, the court sought a clarification from the Centre on whether non-consensual unnatural sex would still be considered an offence under the newly enforced penal code, the BNS, as the law currently lacks a provision addressing this issue.
