NEW DELHI: The Supreme Court on Monday refused to entertain a plea filed against the exclusion of the penal provisions for the offences of unnatural sex and sodomy from the Bharatiya Nyay Sanhita (BNS), which replaced the Indian Penal Code (IPC). A bench of Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said the issue falls within parliamentary domain and it cannot pass any direction in the matter.
“We can’t compel the Parliament to introduce laws. We can’t create an offence…This court under Article 142 cannot direct that a particular act constitutes an offence. Such exercise falls under parliamentary domain,” the bench said as it allowed the petitioner to approach the government with a representation on the issue.
Section 377 of the IPC punished non-consensual “unnatural sex” between two adults, sexual activities against minors, and bestiality. On September 6, 2018, the Supreme Court, however, decriminalised same-sex relationships between two consenting adults.
The BNS, which replaced the IPC, came into force from July 1, 2024. The court was hearing a plea filed by one Pooja Sharma seeking to address the “exigent legal lacuna” resulting from the enactment of the BNS.
“The act of omission on the part of respondent (authorities) leaves the victims of non-consensual unnatural sex in dearth of any legal remedy, which would commensurate with the gravity of offence as were earlier defined under Section 377 of the IPC,” said the plea.
In August, 2024, the Delhi High Court had asked the Centre to make its stand clear on the exclusion of penal provisions for the offences of unnatural sex and sodomy from the recently-introduced BNS, replacing the IPC, and said the legislature needs to take care of the issue of non-consensual unnatural sex.
