Delhi High Court gives Centre 6 months to address exclusion of 'unnatural offences' in BNS

The Delhi High Court on Wednesday directed the Central government to expeditiously take a decision on the demand for including a provision to punish acts of non-consensual sodomy or 'unnatural' sexual relations under the Bharatiya Nyaya Sanhita (BNS)..A Bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela had earlier asked the Centre's counsel to obtain instructions in a Public Interest Litigation (PIL) challenging the exclusion of a provision equivalent to Section 377 of the Indian Penal Code (IPC) under the new criminal laws.Today, Central Government Standing Counsel (CGSC) Anurag Ahluwalia submitted that the issue was under the active consideration of the government, and a holistic view would be taken.The Court remarked that there can't be a vacuum when it comes an offence."What people were asking was not to make consensual sex punishable. You made even non-consensual sex not punishable...There can’t be a vacuum to an offence. Suppose something happens outside the court, are we all to shut our eyes because it is not a penal offence in statute books?" the Court observed..The Court further said that there was an urgency in the matter and the government must understand that. "If it requires an ordinance, that can also come. We are also thinking aloud. Since you are indicating some problems, the process will likely take a long way. We are just thinking aloud," it added.Ultimately, the Bench ordered the government to treat the PIL as a representation and take a decision "as expeditiously as possible, preferably within six months"..During the last hearing of the case, the Court had remarked that the new criminal laws does not have the offence at all."There is no provision at all. It is not there. There has to be something there. 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...Quantum [of punishment] we cannot decide but unnatural sex which is non consensual needs to be taken care of by the legislature," it had said..Section 377 of the now-repealed IPC had earlier provided for a punishment of life imprisonment or ten years in jail for voluntarily engaging in "carnal intercourse against the order of nature with any man, woman or animal."The Supreme Court had in Navtej Singh Johar judgment of 2018 decriminalised consensual sexual acts under Section 377 IPC."The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of beastiality," the top court had ruled in the landmark ruling.The BNS replaced the IPC in July this year.There is no provision criminalising non-consensual acts of "unnatural sex" under the BNS.The absence of an equivalent to Section 377 IPC has been criticised since experts state there is no provision to invoke if a man or a transgender person is subjected to rape..The High Court today was dealing with a plea filed by Advocate Gantavya Gulati arguing that the enactment of the new laws have created a legal lacunae. "The substantive relief sought includes a declaration that the repeal of Section 377 IPC, without incorporating equivalent provisions in the BNS, is unconstitutional, and a mandate directing the Union of India to amend the BNS to incorporate explicit provisions criminalising non-consensual sexual acts. Interim relief is indispensable to forestall irreparable harm to vulnerable individuals and communities and to uphold the inviolable fundamental rights and public safety," Gulati contended.