The Delhi High Court on Wednesday asked the Union government to address a vacuum in the Bharatiya Nyaya Sanhita concerning the punishments for “forced unnatural sex and sodomy”, reported The Hindu.
This came in response to a petition challenging the exclusion of penal provisions for such offences from the new criminal law, which replaced the Indian Penal Code on July 1.
The petitioner contended that there is no legal recourse if a man is sexually assaulted by another man as no first information report can be filed under the new law.
The move had created an “exigent legal lacuna”, the plea argued.
Under Section 377 of the Indian Penal Code, “carnal intercourse against the order of nature with any man, woman, or animal” was punishable with prison time between 10 years to life.
This was the same section that criminalised consensual homosexuality in India. After the Supreme Court in 2018 decriminalised homosexuality, Section 377 continued to outlaw non-consensual “unnatural” sexual activity, for example rape by a person of the same sex.
It carried a punishment of life imprisonment or a 10-year sentence for engaging in “carnal intercourse against the order of nature with any man, woman, or animal”.
The plea in the Delhi High Court contended that the Bharatiya Nyaya Sanhita does not contain any such provision. As a result, members of the lesbian, gay, bisexual, transgender, queer and intersex community are currently not protected against sexual violence.
“The question would be this, what happens in the meanwhile?” the court asked the Centre, reported the Hindustan Times. “What people were asking was not to make consensual [unnatural] sex punishable. You made even non-consensual [unnatural] sex non-punishable. Suppose, something happens outside the court today, are we all to shut our eyes because it is not a penal offence in the statute books?”
The bench asked the Centre to consider the petition as a representation and expeditiously decide on it.
“There is some urgency in the matter, you must understand,” the bench said to the counsel, adding that there cannot be a “vacuum” in the law.
The Centre told the court that it needs some time to deliberate as views of all stakeholders have to be taken, reported PTI. It added that there could not be fixed timelines in matters like this.
The court suggested that the Centre can also come out with an ordinance before it passes a law in Parliament, reported PTI. “We are also thinking aloud,” the court said. “Since you are indicating some problems, the process will likely take a long way.”
As an interim relief, the petitioner sought a directive to provisionally revive criminalisation of non-consensual unnatural sexual acts as previously in Section 377 of the Indian Penal Code till pendency of the petition.
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