The Supreme Court of India.
Credit: Reuters Photo
New Delhi: The Supreme Court on Monday declined to entertain a plea questioning exclusion of the penal provisions for the offences of unnatural sex and sodomy from the Bharatiya Nyay Sanhita (BNS), which replaced the Indian Penal Code (IPC).
A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said it cannot compel the Parliament to introduce laws, and also it can't create an offence.
The BNS came into force on July 1, 2024.
Taking up a plea by Pooja Sharma, the bench said that the issue brought up before the court fell within the parliamentary domain.
"We can't compel Parliament to introduce laws. We can't create an offence...this court under Article 142 cannot direct that a particular act constitutes an offence. Such exercise falls under parliamentary domain," the bench said.
The court, however, allowed the petitioner to approach the government with a representation on the issue.
Petitioner Sharma sought to highlight “exigent legal lacuna” resulting from the enactment of the BNS.
Section 377 of the IPC punished non-consensual "unnatural sex" between two adults, sexual activities against minors and bestiality.
On September 6, 2018, the Supreme Court had decriminalised same-sex relationships between two consenting adults.
In August 2024, the Delhi High Court had asked the Centre to make its stand clear on the exclusion of penal provisions for the offences of unnatural sex and sodomy from the recently introduced BNS.
The High Court had said the legislature needs to take care of the issue of non-consensual unnatural sex.