Last Updated on August 28, 2024 by Athi Venkatesh
The Delhi High Court has directed the Central Government to swiftly decide on including a provision to penalize non-consensual sodomy and other ‘unnatural’ sexual acts under the Bharatiya Nyaya Sanhita (BNS). The court’s directive came in response to a Public Interest Litigation (PIL) challenging the lack of an equivalent provision to Section 377 of the Indian Penal Code (IPC) in the new criminal laws.
The Bench, consisting of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela, had previously asked the government’s counsel to seek instructions regarding this issue. Central Government Standing Counsel (CGSC) Anurag Ahluwalia informed the court that the matter was under active consideration, with a holistic review expected.
The court criticized the absence of penal provisions for non-consensual sexual acts, emphasizing that such legal gaps cannot be ignored. The judges expressed concern about the potential consequences of leaving such offenses unaddressed in the statute books.
The court highlighted the urgency of the matter and suggested that if necessary, the government could issue an ordinance. The Bench instructed the government to treat the PIL as a formal representation and to make a decision “as expeditiously as possible, preferably within six months.”
Previously, Section 377 of the IPC, which was repealed in July with the enactment of the BNS, criminalized non-consensual sexual acts, including carnal intercourse “against the order of nature.” The Supreme Court’s Navtej Singh Johar judgment in 2018 had decriminalized consensual sexual acts but maintained provisions for non-consensual acts and offenses involving minors.
Advocate Gantavya Gulati, who filed the PIL, argued that the repeal of Section 377 IPC without an equivalent provision in the BNS creates a legal void. Gulati urged the court to mandate the Union of India to amend the BNS to include explicit provisions criminalizing non-consensual sexual acts, emphasizing the need to protect fundamental rights and public safety.
