New Delhi, Aug 27 (IANS): The Delhi High Court on Wednesday asked the Union government to treat as representation a petition seeking inclusion of offences of unnatural sex and sodomy in the new penal code, which replaced the Indian Penal Code (IPC).
The recently introduced Bhartiya Nyay Sanhita (BNS), which replaced the IPC, does not recognise non-consensual unnatural sex and sodomy as a penal offence.
However, Section 377 of the now-repealed Indian Penal Code (IPC) made it a punishable offence with life sentence or 10-year imprisonment, along with fine.
Stating that “no vacuum could exist in criminal laws”, a bench presided over by Acting Chief Justice Manmohan told the Centre to decide the representation expeditiously, preferably within six months.
The Bench, also comprising Justice Tushar Rao Gedela, said that though the court may not decide the quantum of punishment for an offence, the legislature should include non-consensual sexual acts in the penal statute.
The plea filed by advocate Gantavya Gulati raised concerns over the lack of legal provisions in BNS similar to Section 377 of the IPC, which safeguarded the LGBTQIA+ community.
The petitioner said that the PIL was filed to safeguard the queer community, which will be left remediless under the BNS if subjected to non-consensual sexual acts.
In the landmark 2018 Navtej Johar judgment, the Supreme Court unanimously declared Section 377 of the Indian Penal Code (IPC) as unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex" while hearing a writ petition filed by social activist Johar and five others belonging to sexual and gender minority communities.
The five-judge Constitution Bench decriminalised consensual homosexual intercourse by keeping out of the purview of Section 377 of the IPC.
However, it declined to strike down the provision criminalising non-consensual “carnal intercourse against the order of nature with any man, woman or animal”.
In October last year, a five-judge Constitution Bench headed by CJI Chandrachud refused to grant any legal recognition to same-sex couples.