Non-Consensual Unnatural Sex Clause 'Missing' In New Criminal Laws. Centre To Reply

The Delhi High Court on Tuesday asked the Centre to make its stand clear on the exclusion of penal provisions for the offences of unnatural sex and sodomy from the Bhartiya Nyay Sanhita (BNS), which replaced the Indian Penal Code (IPC). The court said the legislature needs to take care of the issue of non-consensual unnatural sex.

"Where is that provision? There is no provision at all. It is not there. 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 offence...

"Quantum (of punishment) we cannot decide but unnatural sex which is non-consensual needs to be taken care of by the legislature," a bench of acting Chief Justice Manmohan and Justice Tushar Rao Gedela observed.

The court granted time to the Centre's counsel to seek instructions on the issue and listed the matter for further hearing on August 28.

The court was hearing a PIL by Gantavya Gulati, a lawyer who was appearing in person, seeking to address the "exigent legal lacuna" resulting from the enactment of the BNS which has also led to the repeal of section 377 of the IPC.

The lawyer submitted that BNS excludes any provision equivalent to section 377 of the IPC due to which every person, especially the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, will be affected. He also flagged alleged atrocities against those from the LGBTQ community.

Section 377 of IPC punished non-consensual unnatural sex between two adults, sexual activities against minors, and bestiality.

The BNS, which replaced the Indian Penal Code (IPC), came into force from July 1, 2024.

Central government standing counsel Anurag Ahluwalia submitted that he would seek instructions from the authorities and has already escalated the issue to people at the highest level as it would require some consideration.

He said even assuming that there is an anomaly, courts cannot interfere or direct the legislature to enact a provision in a law.

"It is not a new avatar of the Act, it is a new Act...how much the courts can interfere is something which has to be seen," he said.

The plea said after the Supreme Court's judgment, section 377 decriminalised consensual homosexual acts and only criminalised non-consensual sexual acts, and its absence in the BNS has engendered a critical void in legal protection, disproportionately affecting vulnerable communities.

As an interim relief, the petitioner has sought a directive to provisionally revive criminalisation of non-consensual sexual acts as previously encapsulated in section 377 of the IPC till pendency of the petition. He contended that there is no legal recourse if a man is sexually assaulted by another man and no FIR can be filed under the new law.

The plea sought a direction to the Centre to amend the BNS to incorporate explicit provisions criminalising non-consensual unnatural sexual acts.

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