Supreme Court Declines Plea To Reinstate Section 377 In Bharatiya Nyaya Sanhita

New Delhi, October 14: The Supreme Court on Monday declined to entertain a Public Interest Litigation (PIL) plea to reinstate Section 377 from the Indian Penal Code (IPC) that criminalized sexual offences against men, transgender persons, and animals under the newly enacted Bharatiya Nyaya Sanhita (BNS). The petition argued that the BNS, which replaces the IPC, has omitted the previously existing Section 377 that criminalised “unnatural sex” and carnal intercourse with men, women, or animals.

Section 377 was partially struck down by the Supreme Court in the landmark 2018 case Navtej Singh Johar v. Union of India, which decriminalised consensual same-sex relations between adults. However, non-consensual homosexual acts and bestiality remained punishable under this provision. The petitioner contended that the BNS, by excluding such provisions, creates a legal vacuum regarding sexual offences against men, transgender individuals, and animals.

The bench, headed by Chief Justice of India (CJI) DY Chandrachud, along with Justices JB Pardiwala and Manoj Misra, observed that the plea to reinstate Section 377 was beyond the Court’s jurisdiction to direct Parliament to create a new offence. “The Parliament has not introduced the provision. We cannot compel the Parliament to introduce the provision, nor can we create an offence,” said the CJI, adding that the responsibility for legislating such matters lies solely with the Parliament.

The Court, however, allowed the petitioner to make legal representations to the Union Government. “If the petitioner perceives a lacuna in the law, the petitioner is permitted to make a representation before the Union,” the bench stated.

This decision follows a similar one by the Delhi High Court, which recently disposed of a petition. This petition requested the Union Government to address the omission of Section 377 in the BNS.

During the hearing, the petitioner’s counsel cited the Supreme Court’s ruling in P Ramachandra Rao v. State of Karnataka, which allows the judiciary to issue guidelines where legal gaps exist. The counsel also referenced a report from the Parliamentary Standing Committee on Home Affairs. Brij Lal chaired the Standing Committee on Home Affairs, which submitted its report on November 10, 2023. The report expressed concerns over the deletion of Section 377 from the BNS. Hence, highlighting the need for provisions criminalising non-consensual acts involving men, transgender persons, and animals.

The report noted that the Navtej Singh Johar judgment decriminalized consensual same-sex relations. Although, Section 377 continued to apply to non-consensual acts and bestiality. The committee recommended that the government reintroduce Section 377 to align with the BNS’s goal of establishing gender-neutral offences.

The plea reflects ongoing concerns about potential legal gaps regarding protection for men. It also includes transgender individuals, and animals from sexual offences under the new legal framework.