Delhi HC asks Centre to clear its stand on PIL challenging exclusion of provision for unnatural sex in new criminal laws

New Delhi: The Delhi High Court on Tuesday asked the Centre to clarify its position on a Public Interest Litigation (PIL) which stated that the new criminal laws Bharatiya Nyaya Sanhita (BNS) lacks a provision equivalent to Section 377 of the Indian Penal Code (IPC).
Section 377 had previously criminalized "sodomy" and "unnatural sex," but was partially decriminalized by the Supreme Court in 2018, stated the plea.
The bench, led by Acting Chief Justice Manmohan and including Justice Tushar Rao Gedela, has given the Union of India's counsel ten days to take instructions on the grievance raised in the PIL and fixed the matter for further hearing on August 27, 2024.
During the hearing, the bench inquired whether the Bharatiya Nyaya Sanhita (BNS) addresses non-consensual unnatural sex and questioned if its omission from the BNS implies that such acts are no longer considered offences.
The Centre's counsel, Anurag Ahluwalia, sought time to obtain instructions, stressing that the issue has been escalated and requires careful consideration.
The PIL moved by Gantavya Gulati stated that the BNS does not include a provision equivalent to Section 377 of the IPC, which previously criminalized "sodomy" and "unnatural sex." Section 377 was decriminalized for consensual same-sex relations in 2018 by the Supreme Court of India in the landmark case of Navtej Singh Johar v. Union of India.
The PIL raises concerns about whether the new code adequately addresses or maintains protections related to sexual offences, and whether it continues to safeguard individual rights and freedoms in light of the Supreme Court's ruling.
The petitioner argued that the BNS's absence of similar provisions creates a legal gap, negatively impacting vulnerable communities by removing protections against non-consensual sexual acts.
The PIL seeks a directive to temporarily reinstate protections against non-consensual sexual acts as previously under Section 377 IPC, and orders for law enforcement to ensure protection against such acts.
PIL also seeks a declaration that the BNS's repeal of Section 377 IPC without equivalent provisions is unconstitutional and a mandate for the Union of India to amend the BNS to include clear provisions criminalizing non-consensual sexual acts.
The petition asserts that this legislative omission violates fundamental rights under Articles 14, 19, and 21 of the Constitution and could cause irreparable harm to individuals and communities.