Decide on plea against exclusion of penal provision for unnatural sex offence in BNS, HC tells Centre

Delhi High Court asks Centre to consider petition against exclusion of penal provisions for unnatural sex in BNS.

The Delhi High Court on Wednesday (August 28, 2024) asked the Centre to treat as representation a petition against the exclusion of penal provisions for the offences of unnatural sex and sodomy from the Bhartiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code.

The court asked the Central government to expeditiously decide the representation, preferably within six months.

The plea filed by Gantavya Gulati, a lawyer who was appearing in person, sought 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 Central government’s standing counsel submitted that the issue was under consideration by the government and a holistic view will be taken which will require some time.

“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 court observed.

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 was needed for deliberations as views of all stakeholders had to be taken and added that there could not be fixed timelines on these kind of issues.

The plea 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. The plea also flagged alleged atrocities against those from the LGBTQ community.