Delhi High Court seeks Centre's stand on PIL against exclusion of 'unnatural offences' in BNS

The Delhi High Court on Tuesday sought Central government's stand on a Public Interest Litigation (PIL) petition challenging the exclusion of provision to punish acts of non-consensual sodomy or other 'unnatural' sexual relations with any person (man or woman) under the Bharatiya Nyaya Sanhita (BNS)..A Division Bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela granted Central Government Standing Counsel (CGSC) Anurag Ahluwalia time till August 27 to obtain instructions in the matter. During the hearing of the case, the Bench remarked that the new criminal code 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," the Bench remarked. Ahluwalia stated that the he has escalated the matter at the highest level and will come back with instructions. "We will obtain instructions without issuing notice. Even if there is any anomaly or omission... How much the courts can interfere is also to be seen as it is a new Act. I have escalated this at the highest level," he said. .Section 377 of the now-repealed Indian Penal Code (IPC) had earlier provided for a punishment of life imprisonment or ten years in jail for voluntarily engaging in "carnal intercourse against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.