In a critical improvement, the Delhi Tall Court has coordinated the Central government to critically address the avoidance of non-consensual homosexuality or 'unnatural' sexual relations from the Bharatiya Nyaya Sanhita (BNS) inside six months. The mandate came in reaction to a Open Intrigued Case (PIL) that raised concerns over the exclusion of a arrangement identical to the canceled Area 377 of the Indian Corrective Code (IPC) within the modern criminal law system.
The PIL, filed by Advocate Gantavya Gulati, challenged the exclusion of a provision to punish acts of non-consensual "unnatural" sexual relations under the BNS. The petitioner argued that this omission creates a legal vacuum, leaving no recourse for victims of such acts, particularly men and transgender individuals who may be subjected to rape.
During the hearing, a Bench comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gedela expressed serious concerns about the legal gap created by the repeal of Section 377 IPC without a corresponding provision in the BNS. The Bench emphasized that the issue needed immediate attention, as the absence of legal provisions for non-consensual "unnatural" offences could have severe consequences.
Central Government Standing Counsel (CGSC) Anurag Ahluwalia informed the Court that the issue was under active consideration, and a comprehensive view would be taken. However, the Court underscored the urgency of the matter, stating, "There can’t be a vacuum to an offence. Suppose something happens outside the court, are we all to shut our eyes because it is not a penal offence in statute books?"
The Court further highlighted the need for swift action, suggesting that if necessary, the government could issue an ordinance to address the issue. "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 remarked.
Ultimately, the Court ordered the government to treat the PIL as a representation and take a decision "as expeditiously as possible, preferably within six months." The Bench reiterated the importance of filling the legal void left by the repeal of Section 377 IPC, particularly for non-consensual acts.
The case has drawn attention to the broader implications of the BNS, which replaced the IPC in July 2024.Legal experts and human rights advocates have raised concerns over the exclusion of non-consensual "unnatural" offences from the BNS, following the Supreme Court's 2018 Navtej Singh Johar ruling that decriminalized consensual sexual acts under Section 377 IPC.
Conclusion
The Delhi High Court's order to the Central government underscores the necessity for a thorough legal framework covering all types of sexual violence, including non-consensual "unnatural" acts. The Court's remarks emphasize the significance of having legal safeguards for everyone, regardless of their gender or sexual orientation.
While the Centre considers the matter, it is uncertain how the government will react to the Court's order and if the legal gap pointed out by the High Court will be dealt with quickly.
TAGS: Delhi High Court directs Centre to address exclusion of non-consensual 'unnatural' offences in Bharatiya Nyaya Sanhita within six months highlighting legal vacuum left by repeal of Section 377 IPC.
