Supreme Court Refuses To Entertain Plea To Criminalise Sexual Offences Against Men, Trans Persons & Animals In BNS

The Supreme Court on Monday (October 14) refused to entertain a PIL seeking directions under Article 142 to include sexual offences against men, trans persons and animals under the newly enacted Bharatiya Nyaya Sanhita (BNS) which replaced the Indian Penal Code. 

The petition was filed contending that the new BNS omitted the erstwhile S. 377 of the Indian Penal Code which criminalised 'unnatural sex' and carnal intercourse with a man, woman or animal. Notably, the provision was struck down in the landmark decision of Navtej Singh Johar v. Union of India by the Apex Court insofar as it criminalised consensual sexual acts of adults. Hence, non-consensual homosexual acts were punishable as per Section 377. 

Presently, the BNS does not contain any provision criminalising sexual offences against men, trans persons and animals.  

During the hearing, the bench of CJI DY Chandrachud, Justices JB Pardiwala and Manoj Misra observed that the Court cannot direct the Parliament to create an offence.

"The Parliament has not introduced the provision (erstwhile s. 377), we cannot compel the parliament to introduce the provision...we cannot create an offence." 

"This court cannot by recourse under article 142 direct that a particular act constitutes an offence. Such exercise falls under parliamentary domain," the CJI observed in the order so dictated. 

However, the bench permitted the petitioner to make legal representations before the Union of India. 

"If petitioner perceives a lacuna in law, petitioner is permitted to make representation before the Union," the bench observed.

Recently, the Delhi High Court also disposed of a similar petition asking the Union to take a decision on the petitioner's representation.

The counsel for the petitioner relied upon the decision of the Top Court in P Ramachandra Rao v. State of Karnataka where it was observed that in the presence of lacuna in law, the Court can pass suitable guidelines. He added that the Parliamentary Standing Committee on Home Affairs chaired by Mr Brij Lal in its report dated November 10, 2023 already notes the difficulty of deleting S. 377 from BNS. 

The relevant observations of the Report reads : 

The Committee observes that in Navtej Singh Johar v. Union of India (2018) case, a five-judge bench of the Supreme Court unanimously held that section 377 of IPC is in violation of Articles 14, 15, 19, and 21 of the Constitution of India. Provisions of section 377, however, remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality. However, now, in the Bharatiya Nyaya Sanhita, 2023, no provision for non-consensual sexual offence against male, female, transgender and for bestiality has been made. 

The Committee feels that to align with the objectives stated in the BNS's Statement of Objects and Reasons, which inter-alia highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain the section 377 of the IPC. The Committee therefore recommends the Government to include section 377 of IPC, in the proposed law.

Counsel for the Petitioners : Advocates Puru Mudgil, Ayush Saxena, Akash Vajpai and AOR Anoop Prakash Awasthi

Case Details : POOJA SHARMA Versus UNION OF INDIA AND ANR. W.P.(Crl.) No. 398/2024

Citation : 2024 LiveLaw (SC) 834

Click Here To Read/Download Order