Delhi High Court Seeks Centre's Response On Exclusion Of Non-Consensual Homosexual Offences From BNS

The Delhi High Court today asked the Central government counsel to seek instructions as regards the government's stand on the exclusion of offences dealing with non-consensual same-sex offences, which were punishable under Section 377 of the now repealed Indian Penal Code, from the newly enacted Bhartiya Nyaya Sanhita (BNS).

A division bench comprising Acting Chief Justice Manmohan and Justice Tushar Gedela wondered if the act will still be an offence, if it is obliterated from the statute.

"If it's not there, is it an offence?...if stabbing with knife is not a murder, where is the question of exceptions to murder?" Justice Gedela orally remarked.

The Petitioner urged that either the government restore/ point out the relevant provision criminalising non-consensual carnal intercourse or rape provisions be read in a gender neutral manner.

Centre's counsel submitted that even assuming there is an anomaly, the Courts cannot interfere or direct the legislature to enact a provision. "It's not new avatar of the Act, it's a new Act...how much the courts can interfere is something which has to be seen," he said and suggested that he may first be granted time to take instructions.

Petitioner then argued there is no legal recourse if a man is sexually assaulted by another man. "No FIR can be filed..." he submitted, seeking interim directions in the matter. However, the bench orally said, "If an offence is not there, if it is obliterated, it is not an offence...if unnatural sex is not provided for...we cannot...let's see it's up to them whether they want to make it an offence or not." It further pointed that an aggrieved person can always invoke provisions criminalising "bodily harm".

The Centre's counsel also informed the Court that a representation flagging the issue raised in the petition is already pending before the concerned Ministry and suggested that the PIL may also be disposed of, treating it as a representation.

However, the bench declined the request, stating that petition also raises issues pertaining to violence against the LGBTQ community. "Come back with instructions," it said and posted the matter for August 28.

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”.