The Supreme Court on Monday refused to direct the Union government to incorporate non-consensual unnatural sex as an offence under the newly enacted Bharatiya Nyay Sanhita (BNS), which does not include a provision similar to the former Section 377 of the Indian Penal Code (IPC).
While the petition said this was required to address offences against men, trans people and animals , the court emphasised its role in interpreting and testing the validity of laws, not creating or mandating the creation of new offences.
“We cannot create an offence. We cannot direct the legislature to add an offence to a penal statute. We can’t do it,” said a bench led by Chief Justice of India Dhananjaya Y Chandrachud.
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The bench, which also comprised justices JB Pardiwala and Manoj Misra, underscored that “creating an offense is the exclusive domain of the legislature,” and that courts cannot intervene in legislative matters by directing the inclusion of specific crimes in penal statutes.
“The Parliament has not introduced the provision (erstwhile Section 377). We cannot compel the parliament to introduce the provision,” it said.
While dismissing the plea, the court advised the petitioner, Pooja Sharma, to present her concerns directly to the appropriate legislative authorities if she seeks the inclusion of such a provision in the BNS.
“The grievance of the petitioner is that BNS does not have any provision similar to Section 377 of the IPC. This court cannot by recourse to its power under Article 142 direct that a particular act constitutes an offence. Such an exercise lies within the domain of the legislature. However, if the petitioner feels there is a lacuna, she is free to move a representation before the competent authority,” recorded the bench in its order.
Sharma’s petition had argued that excluding penalties for non-consensual acts akin to the former Section 377 leaves a gap in the legal protections for vulnerable communities.
Notably, Section 377, a colonial-era law, had criminalised “carnal intercourse against the order of nature” until it was partially struck down by the Supreme Court in the landmark 2018 case of Navtej Singh Johar Vs Union of India. While the Navtej Johar judgment decriminalised consensual same-sex relations, the provision continued to be applicable to non-consensual acts.
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When the government introduced the revised version of BNS in December 2023, it remained firm on not reviving the provision relating to re-criminalisation of non-consensual gay sex. The government vetoed a parliamentary panel’s recommendation to bring back the erstwhile Section 377 of IPC in a new form under BNS.
Historically, the judiciary has held a firm stance on respecting the division of powers, recognising that legislative decisions lie with Parliament. In Constitution bench judgments such as Kesavananda Bharati Vs State of Kerala (1973), IR Coelho Vs State of Tamil Nadu (2007), the top court ruled that the doctrine of separation of powers, though not specifically engrafted, is constitutionally entrenched and forms part of the basic structure as its sweep, operation and visibility are apparent. The Constitution has made demarcation, without drawing formal lines, amongst the three organs with the duty of the judiciary to scrutinise the limits and whether or not the limits have been transgressed.
These judgments clarified that while the judiciary can review the constitutionality of laws, it cannot assume the role of a lawmaker. This principle of judicial restraint reflects the court’s commitment to the Constitution, which designates Parliament as the body responsible for crafting and amending laws.
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During Monday’s hearing, Sharma’s petition highlighted the potential risks of omitting non-consensual acts from the penal code and asked the court to direct the government to either reinstate criminalisation of these acts under a new provision or restore penalties akin to the old Section 377. However, the bench emphasised that such changes require legislative processes and broader stakeholder consultation.
Interestingly, the Delhi high court is also considering a similar plea. On August 28, a bench of acting chief justice Manmohan and justice Tushar Rao Gedela suggested that the Union government promulgate an ordinance to penalise “unnatural sex” and sodomy while it considers amending the BNS. The high court stressed that no legal vacuum should exist, particularly when the Union government is actively deliberating on the need for such provisions.
In response, the Centre’s counsel, Anurag Ahluwalia, informed the high court that consultations were ongoing and that the inclusion of a provision similar to the former Section 377 would involve collaboration across government agencies and stakeholders, ensuring broad consensus.
