Delhi HC restores plea on absence of Section 377-like provision in BNS

The Delhi High Court on Friday (March 20, 2026) said it will consider a public interest litigation (PIL) seeking penal provisions in the criminal law for non-consensual unnatural sex, akin to section 377 of the erstwhile Indian Penal Code.

A bench of Chief Justice D.K. Upadhyaya and Justice Tejas Karia restored the petition by Gantavya Gulati, which was disposed of in August 2024 with a direction to the Centre to expeditiously decide his representation on the issue.

The petition highlighted a “legal lacuna” following the enactment of the Bharatiya Nyaya Sanhita (BNS), which does not contain a provision equivalent to Section 377. It argued that the absence of such a provision leaves victims, especially the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, without a specific criminal remedy against certain forms of sexual assault.

“The direction for consideration and taking a decision on the representation was issued by the court on August 28, 2024. A time period of one and a half years can be safely said to be reasonable time to take any decision. However, the decision is nowhere in sight. In view of the aforesaid, the writ petition is restored to its original number,” the court said.

The court 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.

Section 377, after the Supreme Court decriminalised consensual same-sex relations, continued to apply to non-consensual acts, offences involving minors, and bestiality. The BNS replaced the IPC from July 1, 2024.

The petitioner contended that the absence of a similar provision creates a gap in protection, including in cases where a man is allegedly sexually assaulted by another man, requiring legislative intervention.