Why is the Delhi HC hearing a plea against the exclusion of Section 377 from the new criminal laws?

However, this may have unforeseen consequences, according to the petitioners who have approached the Delhi HC. They have argued that Section 377 provided protections to men and LGBTQIA+ individuals from non-consensual sexual intercourse even after the SC’s 2018 verdict.

What are the concerns surrounding the removal of Section 377? Does the BNS provide any alternate protections?

Rape under the BNS and ‘Unnatural offences’ under the IPC

Chapter V of the BNS is titled “Of offences against women and child” and provides the definition and punishment for the crime of rape under Section 63. However, the language of the section is gendered — it only considers rape in the context of a man committing the crime against a woman.

On the other hand, Section 377 (while it was still on the books) severely punished non-consensual intercourse “with any man, woman or animal”. Offenders could be punished with imprisonment for life and a fine.

In 2018, the SC delivered its verdict on the challenge to Section 377. It referred to those areas of the section that criminalised consensual unnatural sex as “irrational, indefensible and manifestly arbitrary”. The court also noted that Section 377 was used as a weapon to harass members of the LGBTQIA+ community, resulting in discrimination against them.

“Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights,” the court said.

However, the court clarified that its judgement was limited to decriminalising consensual sex between adults.

In its 2023 report on the BNS, the Parliamentary Standing Committee on Home Affairs recommended retaining Section 377 in the BNS. It said, “Following this decision (in Navtej Singh Johar), section 377, IPC is now applied to prosecute only non-consensual sexual acts…[I]n the Bharatiya Nyaya Sanhita, 2023, no provision for non-consensual sexual offence against male, female, transgender and for bestiality has been made.”

The case at the Delhi HC so far

On Monday (August 12), a Delhi HC bench comprising Acting Chief Justice Manmohan and Justice Tushar Rao Gedela began to hear a PIL filed by lawyer Gantavya Gulati. 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.

The Centre, however, argued that the court could not direct the legislature to enact a provision, even if there were an anomaly in the law. The government’s counsel pointed out that a representation had already been filed flagging this issue with the union government and is pending consideration.

The bench directed the Centre to return on August 28 to clarify its stance on non-consensual sexual offences following the deletion of Section 377.

Alternative protections under the BNS

Section 36 of the BNS provides every person with the “right of private defence” to protect their own body or the body of another person “against any offence affecting the human body”. This right also extends to protecting property from the offences of “theft, robbery, mischief or criminal trespass”.

Section 38 details the situations where this right allows the “voluntary causing of death or of any other harm to the assailant”. This includes situations where a person is faced with “an assault with the intention of committing rape” or “an assault with the intention of gratifying unnatural lust”. Unlike the offence of rape, these provisions are not limited to women or any specific gender.

Section 140 also punishes kidnapping or abduction where the victim is “subjected to grievous hurt, or slavery, or to the unnatural lust of any person”. However, in both cases (private defence and kidnapping) the phrase “unnatural lust” has not been defined.