Delhi High Court and the Challenge to Reinstate Section 377 IPC-Like Offences in BNS
In a notable session on Wednesday, the Delhi High Court articulated its stance on the plea to reinstate offences akin to Section 377 of the Indian Penal Code (IPC) within the Bharatiya Nagarik Sanhita (BNS). The court made it clear that it could not unilaterally introduce provisions that the legislature has chosen to omit.
Historically, Section 377 IPC penalized non-consensual sexual acts deemed “against the order of nature,” encompassing acts with any man, woman, or animal, and imposed penalties up to ten years imprisonment. However, the current legislative framework, embodied by the BNS, has excluded such provisions, focusing instead on crimes where the perpetrator is male and the victim is female.
Petition for a Gender-Neutral Approach
The petitioners, consisting of advocates Shubhi Srivastava, Ajay Kumar Singh, Prince Kumar, N Zubemo Lotha, Garima Singh, and former civil servant Ashok Kumar Singh, urged the court to consider a gender-neutral interpretation of the BNS. They argued that the omission of a provision equivalent to Section 377 creates a significant legal gap, especially concerning male, transgender, third-gender victims, or situations involving female or third-gender/transgender perpetrators.
Court’s Rationale and Legislative Authority
Presiding over the matter, Chief Justice Devendra Kumar Upadhyaya, alongside Justice Tejas Karia, emphasized that such issues fall under legislative purview and cannot be addressed through judicial intervention. “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 Bench inquired rhetorically.
The court further clarified that the BNS’s criminalized offences target crimes against women, which cannot be reinterpreted to encompass unnatural offences. Justice Karia noted, “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.”
More Read
Future Proceedings
As the legal debate continues, the court has attached this petition to similar cases under consideration, with further hearings slated for October. The decision underscores the complexity and sensitivity surrounding legislative changes and the judiciary’s role in interpreting them. The petitioners’ demand for either a gender-neutral reading of the law or a mandated legislative amendment remains an issue for the legislature to address.
