In the year 2018, Supreme Court of India decriminalised homosexuality by ruling that Section 377 of IPC would not punish people in the same -sex relationships. Interestingly enough, Delhi High Court is hearing a plea against the exclusion of IPC Section 377 in the Bharatiya Nayai Sahitha.
Let us understand why. The Bharatiya Nyaya Sanhita, which came into force on July 1, 2024, has replaced the Indian Penal Code 1860. Under the IPC, Section 377 punished anyone who voluntarily has carnal intercourse against the order of nature with any man, woman or animal.
This section was completely abolished or deleted entirely after the BNS or Bharatiya Nyaya Sanhita came into force. As per a petitioner of the Delhi High Court, this may have had unforeseen consequences.
The petitioner has argued that the Section 377 provided protections to men and LGBTQIA plus individuals from non-consensual sexual intercourse. Now after the deletion of Section 377, the Delhi High Court recently asked the Centre to clarify its stance on non-consensual sexual offences against LGBTQIA communities and men under the Bharatiya Nyaya Sanhita.
The High Court bench directed the Centre to return on August 28. to clarify its stance on non-consensual sexual offences following the deletion of Section 377. In the Bharatiya Nyaya Sanhita, chapter 5 titled as Of Offences Against Women and Child, provides the definition of punishment for crime of rape under Section 63.
However, the language of this 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, punished non-consensual intercourse with any man, woman or animal.
Its 2023 report on Bharatiya Nayasahita, the parliamentary standing committee on home affairs recommended retaining section 377 in the new law. It said, quote, in the Bharatiya Nayasahita 2023, no provision for non -consensual sexual offences against male, female, transgender for bestiality has been made.
The recent PIL in the Delhi High Court has been filed by the lawyer Ganta Vyagulati. The petitioner has argued that section 377 of IPC in its absence poses threat to every individual but specially LGBTQ communities. He has also said in the petition that the BNS or the Bharatiya Nyaya Sanhita does not contain any protections for a man who is sexually assaulted by another man.
In response, the government council pointed out that a representation had already been filed flagging its this issue with the union government and was pending consideration.
