'Can't Create Offence': SC On PIL Against BNS Excluding Non-Consensual Homosexual Offences

CJI Chandrachud said that if the petitioner perceives a lacuna in law, then they are permitted to make representation before the Union.

The apex court today said that such exercise falls under Parliamentary domain. 

Source : PTI

The Supreme Court on Monday while hearing a PIL against missing provisions in Bharatiya Nyaya Sanhita (BNS) to penalise sexual crimes against men, transpersons, etc that were earlier covered by Section 377 of IPC, said that it cannot create an offence.

A bench headed by Chief Justice of India (CJI) DY Chandrachud said that if the Parliament has not introduced the provision, the Supreme Court cannot compel it to introduce the provision. The bench said that the top court cannot create an offence, but it can allow the petitioner to make a representation to the Centre.

"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 the Union of India," the top court said.

CJI Chandrachud said that if the petitioner perceives a lacuna in law, then they are permitted to make representation before the Union.

The apex court today said that such exercise falls under Parliamentary domain. 

In August, the Delhi High Court had directed the Centre to expeditiously decide on a plea against exclusion of "unnatural offences" in 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 in the Delhi High Court 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 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 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.