The Central government has been given six months by the Delhi High Court to expeditiously address the decision on exclusion of ‘unnatural offences’ from the Bharatiya Nyaya Sanhita .
The Delhi High Court has expressed its concern, pointing out that even non-consensual acts are no longer punishable, stating that there cannot be a vacuum when it comes to an offence.
The Centre’s counsel was earlier asked by the Acting Chief Justice Manmohan and Justice Tushar Rao Gedela to obtain instructions in a PIL which challenged the exclusion of a provision equivalent to Section 37
Anurag Ahluwalia who is the Central Government Standing Counsel (CGSC)said that the government is considering the issue.
The Court however remarked that the people were not asking to make consensual sex punishable but even the non-consensual has not been made sex not punishable and that tere can’t be a vacuum to an offence.
The court asked a very pertinent question that if something happens outside the court, should they shut their eyes because it is not a penal offence in statute books?
Stating the matter to be urgent in nature, Court asked the government to understand and take action.The Court added that if it requires an ordinance, that can also come.
The Delhi High Court Bench has asked the ordered government to treat the PIL as a representation and take a decision within six months.
While the case was heard last time, the Court had said that the new criminal laws does not have the offence at all.
“There is no provision at all. It is not there. There has to be something there. The question is that if it is not there, then is it an offence? If an offence is not there and if it is obliterated, then it is not an offence…Quantum [of punishment] we cannot decide but unnatural sex which is non consensual needs to be taken care of by the legislature,” it had said.
The Court mentioned that under the now repealed Section 377 of IPC, there was a provison for punishment of life imprisonment or ten years in jail for voluntarily engaging in “carnal intercourse against the order of nature with any man, woman or animal.”
In 2018, the Supreme Court had decriminalised consensual sexual acts under Section 377 IPC in the Navtej Singh Johar judgment.
The Apex Court in its landmark judgement said that provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of beastiality,
The IPC was replaced by BNS this year and under this there is no provision of criminalising non-consensual acts of “unnatural sex” .