'You Made Non-Consensual Sex Not Punishable': HC Directs Centre To Act On Vacuum Created In Absence Of Section 377

The high court today told the Centre that there cannot be a vacuum to an offence and by omitting Section 377, they have decriminalised even non-consensual sex.

In a significant development, the Delhi High Court on Tuesday directed the Centre government to expeditiously decide on the plea against exclusion of "unnatural offences" in Bharatiya Nyaya Sanhita (BNS). The plea highlighted that the omission of IPC's Section 377 in the BNS, has taken away the protection available against same-sex non-consensual sexual acts and a provision to that effect was necessary to ensure the safety and dignity of individuals, particularly those from the LGBTQIA+ community. 

The petition had contended that if a man is raped by another man, then there is no provision under BNS to deal with that.

After the Supreme Court judgment which had decriminalised homosexuality, the Section 377 of IPC was only read to deal with non-consensual cases, particularly to protect and ensure safety of individuals from the queer community. The new criminal law, BNS, that replaced IPC has no such provision. 

The high court today told the Centre that there cannot be a vacuum to an offence and by omitting Section 377, they have decriminalised even non-consensual sex (of the nature mentioned in IPC Section 377).

A division bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela today heard the PIL and passed an order directing the Centre to decide on the issue.

The high court said that the government can also consider bringing in an ordinance to criminalise non-consensual same-sex sexual offences that was dealt by Section 377 of IPC.

In an earlier hearing the Delhi High Court asked the Centr's counsel to seek instructions as regards the government's stand on the exclusion of offences dealing with non-consensual same-sex offences. 

Petitioner Gantavya Gulati had moved the high court seeking directions to the Centre to restore the legal protection against non-consensual sexual acts equivalent to those provided under now repealed Section 377 of the IPC to ensure the safety and dignity of individuals, particularly those from the LGBTQIA+ community.

The petition prayed that either the government restore the relevant provision criminalising non-consensual carnal intercourse or notify that the rape provisions under BNS will be read in a gender neutral manner.