Can’t ask Parliament to create BNS equivalent of Sec 377: Supreme Court | India News – Times of India

NEW DELHI: Differing with Delhi HC, SC on Monday refused to entertain a PIL seeking a direction to Centre to create a provision in Bharatiya Nyaya Sanhita (BNS) to punish non-consensual unnatural sex, which was an offence under Section 377 of the now lapsed IPC.
On petitioner Pooja Sharma’s plea that the legislature completely erased punishment for the “offence” of non-consensual/forcible unnatural sex, a bench of Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said the subject did not fall either within the writ jurisdiction of SC nor could be addressed using SC’s omnibus power under Article 142 of the Constitution.
“How can we compel Parliament to create an offence? It is completely within Parliament’s legislative domain to consider whether an act can be classified as an offence or not,” the CJI-led bench said, adding, “We cannot use our power under Article 142 to create an offence.” This may not be completely true as SC, in its landmark Vishaka judgment on Aug 13, 1997, had created sexual harassment at workplaces as a distinct offence after recording that “the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces and that enactment of such legislation will take considerable time”. Parliament took 16 more years to enact Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act.
A month-and-a-half ago, Delhi HC had not only entertained a PIL by advocate Gantavya Gulati seeking inclusion of non-consensual unnatural sex and sodomy as offences in BNS but also urged Centre to bring an ordinance to penalise these “offences” pending considerations for amendment to BNS.
While granting Centre six months to take a holistic view on inclusion of these “offences” in BNS, HC had said there could not be a vacuum in crime & punishment. “…Centre made even non-consensual (unnatural) sex non-punishable. Suppose something happens outside the court today, are we all to shut our eyes because it is not a penal offence in the statute books?” a bench of CJ Manmohan and Justice T R Gadela asked on Aug 29.
SC in its 2018 judgment in Navtej Singh Johar case had decriminalised consensual sexual activities in private among same-sex adults but had kept other parts of Section 377 intact, which punished non-consensual unnatural sex or sodomy with imprisonment up to 10 years.