Delhi HC Seeks Union’s Response on Plea Flagging Section 377 Gap in BNS, Lists Matter for Feb 20

The Delhi High Court has granted time to the Union of India to seek instructions and respond to a plea highlighting an alleged legislative gap in the Bharatiya Nyaya Sanhita, 2023 (BNS) concerning the absence of a penal provision addressing non-consensual sexual acts previously covered under Section 377 of the Indian Penal Code.

The Court has listed the matter for further consideration on 20.02.2026, with liberty reserved, without proceeding to adjudicate the petition on merits at this stage.

The restoration applications were heard by a Division Bench comprising Chief Justice DK Upadhyaya and Justice Tejas Karia, which sought the Union's response in the writ petition Gantavya Gulati v. Union of India [W.P.(CRL) 2474/2024].

The Bench also directed that the matter be listed on 20.02.2026, in terms of its earlier order requiring the Union Government to treat the writ petition as a formal representation and take an informed decision on the issues raised.

The petition challenges what has been described as a “legislative omission” in the BNS, which repealed the Indian Penal Code in its entirety but did not incorporate a provision equivalent to Section 377 insofar as it criminalised non-consensual sexual acts.

While Section 377 was read down by the Supreme Court in Navtej Singh Johar v. Union of India to decriminalise consensual same-sex relations between adults, the Court had expressly preserved the criminality of non-consensual acts.

The petitioner contends that with the repeal of the IPC and the absence of a corresponding offence in the BNS, a legal vacuum has emerged that leaves certain categories of victims without a specific statutory remedy.

Earlier, the High Court had directed the Union of India to examine the petition as a representation and clarify its position on whether and how the legislative gap would be addressed. In compliance with that direction, applications seeking restoration of the writ petition and condonation of delay were filed.

By its order dated 20.01.2026, the Court directed listing of the matter to facilitate instructions from the Union Government. 

The petitioner, who is a practising advocate, has argued that the absence of a penal provision dealing with non-consensual sexual acts violates Articles 14, 19, and 21 of the Constitution by denying equal protection of law and effective remedies to men, transgender persons, and sexual minorities.

The plea asserts that while gender-specific sexual offences exist under the BNS, the complete omission of a provision covering non-consensual acts previously addressed under Section 377 disproportionately affects vulnerable groups and undermines the constitutional promise of equality and dignity.

Among the reliefs sought are directions to frame interim judicial guidelines governing the registration, investigation, and prosecution of non-consensual sexual acts “against the order of nature” until Parliament enacts appropriate legislation.

The petition also seeks a direction that existing sexual offence provisions under the BNS be interpreted and applied in a gender-neutral manner, drawing support from recommendations of the Law Commission of India and the Parliamentary Standing Committee on Home Affairs.

In addition, the petitioner has sought time-bound directions to the Union of India to place on record steps taken to address the legislative gap, along with periodic status reports.

The revival of the petition comes in the immediate run-up to the Pride Parade scheduled for 8.02.2026, a context that underscores the continuing public relevance of the issue.

The petitioner has maintained that the absence of clarity in criminal law has real world implications for survivors seeking legal recourse and for law enforcement agencies tasked with registering and investigating complaints.

Case Title: Gantavya Gulati v. Union of India

Bench: Chief Justice DK Upadhyaya and Justice Tejas Karia

Order Date: 20.01.2026