The Supreme Court on Monday declined to entertain a plea challenging the exclusion of penal provisions related to unnatural sex and sodomy from the recently enacted Bharatiya Nyay Sanhita (BNS), which replaced the Indian Penal Code (IPC). A bench led by Chief Justice D Y Chandrachud, along with Justices J B Pardiwala and Manoj Misra, ruled that the matter falls within the legislative domain, and the court cannot compel Parliament to introduce or create offenses through judicial direction.
"We cannot compel Parliament to introduce laws or declare that a particular act constitutes an offense. Such an exercise is strictly within the parliamentary domain," said the bench, allowing the petitioner to present a representation to the government.
The plea, filed by Pooja Sharma, highlighted the absence of specific legal remedies for victims of non-consensual unnatural sex after the removal of relevant provisions from the BNS. Under the former Section 377 of the IPC, non-consensual unnatural sex, sexual activities involving minors, and bestiality were punishable offenses. The Supreme Court, however, decriminalized consensual same-sex relations between adults in 2018.
The Bharatiya Nyay Sanhita, which came into effect on July 1, 2024, does not include provisions to address non-consensual unnatural sex, raising concerns about a legal lacuna. Sharma's plea argued that this omission leaves victims without appropriate legal remedies.
Earlier, in August 2024, the Delhi High Court had urged the central government to clarify its stance on the exclusion of these provisions and called on the legislature to address the issue of non-consensual unnatural sex. The Supreme Court, however, maintained that it could not intervene in the legislative process.