The
Delhi High Court on Wednesday directed the Centre to treat as representation a
PIL against exclusion of penal provisions for the offences of unnatural sex and
sodomy from the Bhartiya Nyaya Sanhita (BNS), which replaced the Indian Penal
Code.
A
bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gelela asked the
Central government to expeditiously decide the representation, preferably
within six months.
The court disposed of
the petition and granted liberty to the petitioner to approach the court for
revival of plea in case there is a delay on the government's part to decide his
representation.
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
Indian Penal Code (IPC).
The
bench passed the order after the central government standing counsel Anurag
Ahluwalia submitted that the issue was under consideration and a holistic view
will be taken which will require some time.
The
court said there can't be a vacuum to an offence and what if some offence of
this nature happens today. If there is a vacuum then the offence may fall under
the provision of causing bodily harm for the time being, it said.
What people were asking
was not to make consensual (unnatural) sex punishable. You made even
non-consensual (unnatural) sex non punishable. Suppose, something happens
outside the court today, are we all to shut our eyes because it is not a penal
offence in the statute books? the bench said.
It
pointed out that there is an urgency in the matter and the government must
understand it.
If
it requires an ordinance that can also come. We are also thinking aloud. Since
you are indicating some problems, the process will likely take a long way. We
are just thinking aloud, the bench said.
During
the hearing, the Centre's counsel handed over a letter written to him by the
Joint Secretary, Government of India, on the issue.
The
counsel said some time is needed for deliberations as views of all the
stakeholders have to be taken and added that there can't be fixed timelines on
these kind of issues.
The
petitioner submitted that the BNS excludes any provision equivalent to section
377 of the IPC due to which every person, especially 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 the repealed 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.
The
plea said after the Supreme Court's judgement, 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.