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Synopsis

The Delhi High Court, on Tuesday, directed the Union to submit their response in a plea seeking the inclusion of offences related to non-consensual homosexual offences into the newly enacted Bhartiya Nyaya Sanhita (BNS). Such actions were termed as an offence under Section 377 of the now-repealed Indian Penal Code (IPC).

The bench of Acting Chief Justice Manmohan and Justice Tushar Gedela, while scheduling the matter for August 28, noted, “If it's not there, is it an offence?...if stabbing with knife is not a murder, where is the question of exceptions to murder?”. 

The petitioner requested that the government either restore or identify the relevant provision criminalizing non-consensual carnal intercourse or that the rape provisions be interpreted in a gender-neutral manner.

However, the Union argued that, even if an anomaly existed, the courts lacked the authority to compel the legislature to enact specific provisions, emphasizing that the new law was not merely a revised version of the old one but a completely new act. He sought additional time to obtain instructions on the matter.

The petitioner contended that in cases of sexual assault by one man against another, no legal recourse was available, as no First Information Report (FIR) could be filed.

However, the bench observed that if such an offence had been removed from the statute, it was no longer an offence. The bench noted that the aggrieved party could still invoke provisions criminalizing bodily harm.

The Union also informed the court that a representation addressing the issue raised in the petition was already pending before the relevant ministry and suggested that the Public Interest Litigation (PIL) be treated as a representation and disposed of.

However, the bench declined this request, emphasizing that the petition also raised concerns regarding violence against the LGBTQ community.

Accordingly, the court directed the Centre to return with instructions and scheduled the next hearing for August 28, 2024.