Delhi HC rebukes Centre over 1.5-year delay in fixing ‘unnatural sex’ law gap

THe new delhi heights margaret court on fri verbalized strong displeasure at the Centre’s failure to address a legal vacuum that leaves men and the LGBTQ+ community unprotected from sexual assault under the Bharatiya Nyaya Sanhita (BNS), underlining that the high court had asked the Centre to expeditiously take a holistic view on the issue way back in 2024.The high court also restored the petition, which had been disposed of on August 28, 2024.“The order was passed in August 2024, & we’re in March 2026. After the order dated 28.08.2024, although a sufficient period of more than 1.5 years has elapsed, no decision has been taken on the petitioner’s representation in compliance with the said order. The direction was issued by the Court on 28.08.2024. A period of 1.5 years can reasonably be considered sufficient for deciding on the representation; however, the decision is nowhere in sight,” a bench of chief justice DK Upadhyaya and justice Tejas Karia said after petitioner Gantavya Gulati returned to the court.It added, “In view of the aforesaid, the writ petition is restored. Let an affidavit be filed by the respondent indicating the steps taken to ensure compliance with the order dated 28.08.2024 within a period of four weeks.”The 2024 order also noted that the petitioner would be at liberty to seek revival of the petition if there was an “inordinate delay” in considering his representation.Gulati submitted that he had followed up with the central government on multiple occasions, but the government had failed to make a decision.In its 2024 order, a bench led by the then acting chief justice Manmohan had emphasised that there could not be a vacuum in the law.To be sure, the high court’s order to let the Centre take a decision on the petition was passed following a suggestion by the government’s lawyer who stressed the need to take a “holistic view”.On Friday, the Centre’s lawyer contended that the subject matter was sensitive and could only be decided after gathering the views of the stakeholders concerned. He further submitted that the decision-making process on the issue was ongoing and likely to take some more time.In his petition, Gulati highlighted that the BNS, which replaced the Indian Penal Code (IPC), did not have a provision penalising forced unnatural sex, which posed a significant risk, particularly to the LGBTQ community. Gulati said the absence of such a provision created a legal void, leaving vulnerable communities without adequate protection and urged the court to either restore the criminalisation of non-consensual sexual acts under a provision such as Section 377 (in IPC) or adopt a gender-neutral interpretation of the laws dealing with rape.Section 377 of IPC previously imposed life imprisonment or a ten-year sentence for engaging in “carnal intercourse against the order of nature with any man, woman, or animal.” In 2018, the Supreme Court, in the landmark case of Navtej Singh Johar Vs Union of India, decriminalised consensual same-sex relations, though the provision continued to criminalise non-consensual acts.Gulati said the BNS offered no explicit remedy for a man sexually assaulted by another man, leaving victims without the ability to file a first information report (FIR).