The Supreme Court on Monday refused to direct the Union government to reintroduce non-consensual unnatural sex as an offence under the newly enacted Bharatiya Nyay Sanhita (BNS). The petition, brought forward by Pooja Sharma, argued that the omission of such a provision from BNS left a gap in legal protections for men, trans people, and animals. However, the court clarified that it cannot create offences or compel the legislature to include specific crimes in penal statutes, emphasizing the division of powers between the judiciary and Parliament.
Chief Justice of India D.Y. Chandrachud, heading the bench that also included Justices J.B. Pardiwala and Manoj Misra, stated that creating offences falls strictly within the legislative domain. The court advised Sharma to take her concerns directly to the appropriate legislative bodies if she wished for such provisions to be reconsidered.
The petition raised concerns about the exclusion of penalties for non-consensual acts that were covered under the now partially struck-down Section 377 of the Indian Penal Code (IPC). Section 377, which criminalized “carnal intercourse against the order of nature,” was partially decriminalized by the Supreme Court in 2018 in the landmark Navtej Singh Johar vs Union of India case, but the law remained applicable to non-consensual acts. Sharma’s plea sought the restoration of similar penalties under BNS.
The court’s dismissal followed its long-standing stance on respecting the separation of powers, as outlined in previous rulings, including the Kesavananda Bharati vs State of Kerala (1973) case. While the judiciary can review the constitutionality of laws, it does not hold the authority to legislate.
Meanwhile, the Delhi High Court is also considering a similar plea and recently urged the Union government to address the legal gap regarding non-consensual unnatural sex. The Centre has indicated that consultations are ongoing, with potential future amendments to BNS being discussed.
