Court can't create Section 377 IPC-like offence in BNS: Delhi High Court

The Delhi High Court on Wednesday remarked that it cannot "create" offences that existed under Section 377 of the Indian Penal Code (IPC) but have been dropped in the Bharatiya Nagarik Sanhita (BNS).

Section 377 IPC punished non-consensual intercourse "against the order of nature with any man, woman or animal". It provided punishment of up to 10 years.

The current legal framework dropped the provision and the BNS provisions apply only where the perpetrator of a sexual offence is male and the victim is female.

The petition before the Court said that there should be a gender-neutral interpretation of the BNS provisions.

A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia said that it is a legislative policy matter and can only be looked into by the legislature.

“We understand your [petitioners'] anxiety, but these are legislative policy matters… The offence has to be described. Which is the authority that can do it? It’s the legislature. What can we do about it? Can we provide something which is not provided for by the legislature? Can we by judicial fiat create an offence?" the Court asked.

The Court also said that the offences criminalised under BNS are offences against women and the same cannot be read down to bring unnatural offences within their ambit.

“The problem which you are facing is dropping of Section 377 [IPC] from BNS. Now, to reach that, you are targeting the offences against women. The offences against women were always offences against women. There was a separate category of unnatural offences, which has been dropped. Now, you can't use Article 14 [of the Constitution] to reach the same destination by targeting offences against them because those offences were always there,” the Bench said. 

The Court made the remark while dealing with a public interest litigation (PIL) petition filed by advocates Shubhi Srivastava, Ajay Kumar Singh, Prince Kumar, N Zubemo Lotha and Garima Singh, and a former civil servant Ashok Kumar Singh.

The plea said that BNS provisions related to rape, sexual assault, stalking and voyeurism, etc are unconstitutionally restricted to a man-perpetrator and woman-victim framework.

It was argued that Sections 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 75, 77, 78 and 81 of the BNS apply only where the perpetrator is male and the victim female, leaving no legal recourse where the victim is a man, a transgender person, a third-gender person, or an animal, or where the perpetrator is a woman or a third-gender/transgender individual.

The petitioners contended that there should be a gender-neutral interpretation of these provisions or a writ of mandamus directing the Central government to amend the law.

It was also highlighted that Section 377 of the IPC - which criminalised non-consensual and non-adult acts - was dropped entirely from the BNS without a substitute provision, creating a "constitutional nightmare."

The counsel appearing for the petitioner argued that Section 377 IPC-like offences have been dropped from BNS by the government without appreciating the judgements decriminalising consensual acts.

"Now, what will happen if a man is violated or an animal is violated? The police with the offence of hurt or grievous hurt," the counsel said.

After hearing the case briefly, the Bench tagged it with petitions dealing with similar issues. The matter will heard next in October.