After observing that there is no provision under the newly introduced Bharatiya Nyaya Sanhita, which replaced the Indian Penal Code (IPC) on July 1, to file an FIR for forced unnatural sex and sodomy, the Delhi High Court directed the Union government to address this legal gap.
The court’s intervention came in response to a petition in which the petitioner argued that the new law leaves no legal recourse for cases where a man is sexually assaulted by another man, as it does not provide for the filing of a First Information Report (FIR) for such offences. This omission, the petitioner contended, has created an urgent legal vacuum that fails to protect victims of non-consensual sexual acts.
Previously, Section 377 of the IPC criminalised “carnal intercourse against the order of nature with any man, woman, or animal,” imposing a prison term ranging from 10 years to life imprisonment. This section also criminalised consensual homosexuality until the Supreme Court decriminalised it in 2018. However, Section 377 remained in force to address non-consensual “unnatural” sexual activity, such as same-sex rape.
The petitioner highlighted that the Bharatiya Nyaya Sanhita, which superseded the IPC, lacks provisions for punishing non-consensual unnatural sexual acts. As a result, members of the LGBTQI community are reportedly left without legal protection against sexual violence under the current law.
In response, the court expressed concern about the legal implications of this gap and questioned the Centre on the measures it plans to take to address the issue. The court emphasised the urgency of the matter and suggested that the government could consider issuing an ordinance to temporarily address the legal vacuum until Parliament can enact a comprehensive law.
The Centre, in its reply, requested time to deliberate on the issue, noting that stakeholder consultations would be necessary. The government acknowledged the complexity of the matter and the need for a thorough process.
The court also suggested that, as an interim measure, the government might temporarily reinstate provisions akin to Section 377 of the IPC to criminalise non-consensual unnatural sexual acts until a permanent solution is enacted. The bench stressed the importance of addressing this legal gap promptly to ensure that victims are not left without recourse.