Delhi High Court Asks Centre To Decide Plea Challenging Exclusion Of 'Sexual Offences Against LGBT Persons' From Bharatiya Nyaya Sanhita

The Delhi High Court on Wednesday directed the Union Government to treat as representation a petition filed against the exclusion of a provision similar to Section 377 of now repealed Indian Penal Code, 1860, from the Bharatiya Nyaya Sanhita (BNS).

Acting Chief Justice Manmohan and Justice Tushar Rao Gedela directed the Central Government to decide the representation expeditiously, preferably within six months.

Disposing of the petition, the court said that in case of delay in consideration of the representation, the petitioner, Gantavya Gulati, shall be at liberty to seek revival of the plea.

As the petitioner prayed that the plea be decided in a time bound manner, the Union Government's counsel, Anurag Ahluwali, informed court that no timeline be prescribed as the decision making process would involve consultation from various stakeholders, including parliamentarians.

He said that the provision will have to be introduced in the BNS in a new form and the same has to be done with consensus from all parties. The issue not only deals with the State but is also against public at large, Ahluwalia said.

During the hearing, ACJ Manmohan orally remarked that in the meantime the government applies its mind on the issue, an ordinance can be introduced if required. This was after Ahluwalia indicated that the process is lengthy and might take some time to be deliberated upon.

“An ordinance can come if required, in the meantime you apply your mind,” ACJ said, while adding that the court was only thinking aloud.

Justice Gedela remarked that suppose any incident happens outside the court, will the court shut its eyes just because the offence is not in the statute book.

The plea sought restoration of legal protection against non-consensual sexual acts equivalent to those provided under Section 377 of IPC. This is to ensure safety and dignity of individuals, particularly those belonging to the LGBTQIA+ community, the plea added.

Section 377 of IPC criminalised non-consensual carnal intercourse against the order of nature with any man, woman or animal i.e. 'unnatural offence'. The provision was fully replaced in the BNS, which came into effect from July 01, along with Bhartiya Nagrik Surakhsa Sanhita (BNSS) and the Bhartiya Sakshya Adhiniyam (BSA).

In December last year, the Parliamentary Standing Committee on Home Affairs had sought inclusion of Section 377 of IPC in BNS. In its recommendations, the Committee had said that even though the Supreme Court read down the provision in question, Section 377 of IPC remained applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

However, it added, that the Bharatiya Nyaya Sanhita, 2023, does not contain any provision for non-consensual sexual offence against male, female, transgender and for bestiality. It therefore suggested that “to align with the objectives stated in the BNS, which highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain Section 377 of IPC”. 

Title: GANTAVYA GULATI v. UNION OF INDIA 

Citation: 2024 LiveLaw (Del) 947