New Delhi, March 20 The Delhi High Court said on Friday that it would consider a public interest litigation (PIL) seeking provisions in the criminal law for non-consensual unnatural sex, similar to section 377 of the now-repealed Indian Penal Code (IPC), observing that the Centre's decision on the issue was "still pending" even after a lapse of one-and-a-half years.
A bench of Chief Justice D K Upadhyaya and Justice Tejas Karia restored the petition filed by Gantavya Gulati, which had been dismissed in August 2024 with a direction to the central government to expeditiously decide the plea, preferably within six months.
The petitioner argued that legal protection was needed for members of the LGBTQ community in case of non-consensual unnatural sex.
"The direction for consideration and taking a decision on the petition was issued by the court on August 28, 2024. A period of one and a half years can be safely said to be a reasonable time to take any decision. However, the decision is still pending. In view of the aforesaid, the writ petition is restored to its original number," the bench said.
The bench also sought an affidavit from the Centre to state the steps taken by it to ensure compliance with the earlier direction.
The central government counsel submitted that the petition raised a "sensitive issue" and inputs have been invited from the stakeholders.
Taking a holistic view will "take some time", especially when a "fresh view" has to be taken, the lawyer added.
"Let an affidavit be filed by the respondent as to what steps have been taken to ensure compliance of the order dated August 28, 2024 within a period of four weeks," the court ordered, while listing the matter for further hearing in May.
The PIL by Gulati said that the Indian Penal Code (IPC) did not have any provision equivalent to section 377, due to which every person, especially the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, has been left without a criminal remedy for any atrocity on them.
Section 377 of the repealed IPC punished non-consensual unnatural sex between two adults, sexual activities against minors and bestiality.
The BNS, which replaced the Indian Penal Code (IPC), came into force on July 1, 2024.
The plea said that after the Supreme Court's judgment, section 377 decriminalised consensual homosexual acts and only criminalised non-consensual sexual acts, and its absence in the BNS has engendered a critical void in legal protection, disproportionately affecting vulnerable communities.