The Supreme Court on Monday refused to entertain a Public Interest Litigation (PIL) challenging the exclusion of a provision to punish acts of non-consensual sodomy or other 'unnatural' sexual offences under the Bharatiya Nyaya Sanhita, 2023 (BNS).
A Bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra was of the view that such an issue was within the domain of Parliament and that the Court cannot direct that a particular act be made an offence under the BNS.
The Court, however, granted liberty to the petitioner to make representation to the Central government.
"It is not there in the new law...We cannot create an offence! This Court cannot under Article 142 direct that a particular act is an offence. It falls under the domain of Parliament. If the petitioner feels there is lacunae in law, representation may be given to Union of India," CJI Chandrachud orally said.
Section 377 of the now-repealed Indian Penal Code (IPC) had earlier provided for punishment of life imprisonment or ten years in jail for voluntarily engaging in "carnal intercourse against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 the 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.
On August 28, in a similar plea, the Delhi High Court had directed the Central government to expeditiously take a decision on the demand for including a provision like Section 377 IPC, to punish acts of non-consensual sodomy or 'unnatural' sexual relations under the BNS.
A Bench of Chief Justice Manmohan and Justice Tushar Rao Gedela 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 had said that there was an urgency in the matter and the government must understand that.
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