Court Cannot Direct The Parliament To Create An Offence, Supreme Court On PIL To Include Sexual Offences Against Men, Trans Persons, And Animals In BNS

On October 14, 2024 (Yesterday), the Supreme Court (SC) of India was hearing a PIL (Public Interest Litigation) seeking directions under Article 142 of the Indian Constitution to include sexual offences against men, trans persons, and animals under the Bharatiya Nyaya Sanhita (BNS). This newly enacted criminal law replaced the Indian Penal Code (IPC). The SC bench of Chief Justice of India (CJI) DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra declined to entertain the PIL observing that the Court cannot direct the Parliament to create an offence. It said, “The Parliament has not introduced the provision (erstwhile s. 377), we cannot compel the parliament to introduce the provision...we cannot create an offence.” The CJi added, “This court cannot by recourse under Article 142 direct that a particular act constitutes an offence. Such exercise falls under parliamentary domain.” However, the bench permitted the petitioner to make representations before the Union of India, “If petitioner perceives a lacuna in law, petitioner is permitted to make representation before the Union.”

It has been noted that the Delhi High Court (HC) recently disposed of a similar petition asking the Union of India to decide. During the proceedings, the petitioner’s counsel relied upon the apex court’s decision on the P Ramachandra Rao v. State of Karnataka case where it opined that the Court can pass suitable guidelines in the presence of lacuna in law. The counsel also contended that the Parliamentary Standing Committee on Home Affairs chaired by Mr. Brij Lal in its November 10, 2023 report notified the difficulty of deleting Section 377 from the BNS. The report also states, “The Committee observes that in Navtej Singh Johar v. Union of India (2018) case, a five-judge bench of the Supreme Court unanimously held that section 377 of IPC is in violation of Articles 14, 15, 19, and 21 of the Constitution of India. Provisions of section 377, however, remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality. However, now, in the Bharatiya Nyaya Sanhita, 2023, no provision for non-consensual sexual offence against male, female, transgender, and for bestiality has been made.

The Committee feels that to align with the objectives stated in the BNS's Statement of Objects and Reasons, which inter-alia highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain the section 377 of the IPC. The Committee therefore recommends the Government to include section 377 of IPC, in the proposed law.” While hearing the matter yesterday, the SC bench declined to entertain the PIL.