Delhi HC directs Centre to consider inclusion of Section 377 equivalent in BNS

The court also orally suggested to the government that an ordinance can be introduced if required even as the Union government’s standing counsel Anurag Ahluwalia informed the court that the issue is already under consideration and will require consultation with various stakeholders.

“There can’t be a vacuum, if an ordinance is required that can come…What people were asking was not to make consensual sex punishable (but) you made even non-consensual sex non-punishable…are we all to shut our eyes because it is not a penal offence in the statute book?” Acting Chief Justice Manmohan remarked.

The court, meanwhile, granted the petitioner the liberty to revive the petition before the court in case of delay in consideration of the representation by the government.

While a 2023 Home Affairs’ Parliamentary Standing Committee report on the BNS had recommended retaining Section 377 in the BNS, the same was not explicitly included in the new legislation that replaced IPC from July 1.

The petitioner argued that “Section 377 of IPC in its absence poses threat to every individual but especially LGBTQ persons”. The petitioner also said the BNS does not contain any protections for a man who is sexually assaulted by another man.