The Supreme Court recently dismissed a Public Interest Litigation (PIL) that challenged the omission of provisions for punishing non-consensual sodomy and other 'unnatural' sexual offences under the Bhartiya Nyay Sanhita, 2023 (BNS).

The Court highlighted that such matters fall under Parliament's legislative purview and granted the petitioner the option to make a representation to the Central government if any gaps in the law are perceived.

The Bench, comprising Chief Justice of India D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra, clarified that the Court does not have the authority under Article 142 of the Constitution to create offences.

Chief Justice Chandrachud remarked, "It is not there in the new law… we cannot create an offence! This Court cannot under Article 142 direct that a particular act is an offence. It falls under the domain of Parliament. If the petitioner feels there is a lacuna in the law, representation may be given to the Union of India."

Previously, Section 377 of the Indian Penal Code (IPC) imposed harsh penalties for engaging in "carnal intercourse against the order of nature." However, in its 2018 Navtej Singh Johar judgment, the Supreme Court decriminalized consensual sexual acts while retaining Section 377 for non-consensual acts involving adults, minors, and bestiality. With the introduction of the BNS in July 2023, concerns have been raised about the absence of provisions criminalizing non-consensual "unnatural sex," leaving vulnerable groups such as men and transgender persons without legal protections in cases of sexual assault.

On a related note, the Delhi High Court had addressed a similar issue on August 28, urging the Central government to consider reinstating a provision akin to Section 377 within the BNS. Chief Justice Manmohan and Justice Tushar Rao Gedela stressed the importance of addressing this legal gap, stating, "There can’t be a vacuum when it comes to an offence. Suppose something happens outside the court, are we all to shut our eyes because it is not a penal offence in statute books?" The Court called on the government to act swiftly in remedying this legal oversight.