HC seeks Centre’s stand on exclusion of penal provision for unnatural sex in BNS

Delhi High Court questions exclusion of penal provisions for unnatural sex in new law, affecting LGBTQ community.

The Delhi High Court on Tuesday (August 13, 2024) asked the Centre to make its stand clear on the exclusion of penal provisions for the offences of unnatural sex and sodomy from the Bhartiya Nyay Sanhita (BNS), which replaced the Indian Penal Code (IPC).

“Where is that provision? There is no provision at all. There has to be something. The question is that if it is not there, then is it an offence? If an offence is not there and if it is obliterated, then it is not an offence...,” a Bench of acting Chief Justice Manmohan and Justice Tushar Rao Gedela queried.

It said, “Quantum [of punishment] we cannot decide but unnatural sex which is non-consensual needs to be taken care of by the legislature”. The court granted time to the Centre’s counsel to seek instructions on the issue and listed the matter for August 28.

The Court was hearing a petition by Gantavya Gulati, a lawyer who was appearing in person, seeking to address the “legal lacuna” resulting from the enactment of the BNS.

The lawyer submitted that the BNS excludes any provision equivalent to Section 377 (unnatural offences) of the IPC due to which every person, especially the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, will be affected. He also flagged alleged atrocities against those from the LGBTQ community.

Section 377 of the IPC punished non-consensual unnatural sex between two adults, sexual activities against minors, and bestiality. The BNS, which replaced the Indian Penal Code (IPC), came into force from July 1, 2024.

The Central government standing counsel submitted that he has already escalated the issue to people at the highest level as it would require some consideration. The counsel said even assuming that there is an anomaly, Courts cannot interfere or direct the legislature to enact a provision in a law.