Delhi High Court Seeks Central Government’s Clarification on Legal Status of Non-Consensual ‘Unnatural Offences’ Under BNS
Court Questions Legal Status of Non-Consensual Sodomy Under New Law
On Tuesday, the Delhi High Court requested the Central government’s stance on a Public Interest Litigation (PIL) challenging the Bharatiya Nyaya Sanhita (BNS) for not including provisions to penalize non-consensual sodomy and other ‘unnatural’ sexual acts. The Division Bench, consisting of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela, questioned whether such acts remain offenses under the new legal framework.
Bench Highlights Absence of Relevant Provisions in BNS
During the hearing, the Bench noted that the new criminal code lacks any provisions addressing non-consensual “unnatural sex.” They expressed concern that if such offenses are not explicitly included in the BNS, they might no longer be considered crimes. The Bench remarked on the necessity for legislative action to address this gap, emphasizing that the absence of specific provisions could lead to legal ambiguities.
Central Government Given Time to Respond
Central Government Standing Counsel (CGSC) Anurag Ahluwalia was granted time until August 27 to gather instructions on the matter. He acknowledged the need for a response and mentioned that the issue has been escalated for higher-level review. Ahluwalia indicated that he would report back with detailed instructions on how to address any potential anomalies in the new legislation.
Repeal of Section 377 IPC Creates Legal Concerns
The controversy stems from the repeal of Section 377 of the Indian Penal Code (IPC), which previously criminalized non-consensual sodomy with severe penalties. Although the Supreme Court’s 2018 Navtej Singh Johar judgment decriminalized consensual sexual acts under Section 377, it maintained provisions against non-consensual acts and acts involving minors and bestiality. The BNS, which replaced the IPC in July, does not have a comparable provision, leading to criticism from legal experts and advocates.
PIL Seeks Constitutional Review and Legislative Amendment
The PIL, filed by advocate Gantavya Gulati, argues that the absence of an equivalent to Section 377 in the BNS creates a legal void and is unconstitutional. Gulati has sought a declaration that the repeal of Section 377 without replacing it with suitable provisions in the BNS violates fundamental rights. The petition also calls for a mandate to amend the BNS to include explicit provisions criminalizing non-consensual sexual acts, emphasizing the need for immediate interim relief to protect vulnerable individuals and uphold public safety.
Next Steps
The High Court has scheduled the next hearing for August 28, pending the Central government’s response and further developments on this crucial legal issue.
(With inputs from agency)
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