Delhi High Court Questions Judicial Power to Amend BNS, Appoints Amicus in Plea to Include Transgender Sexual Assault Victims

New Delhi – The Delhi High Court is set to examine a critical legal vacuum in India's new penal code, questioning whether the judiciary can extend the protections against sexual offenses under the Bharatiya Nyaya Sanhita (BNS), 2023, to transgender women and children. While issuing notice to the Union Government on a Public Interest Litigation (PIL), a division bench expressed significant prima facie reservations, framing the issue as a matter for legislative action rather than judicial interpretation.

The PIL, filed by Dr. Chandresh Jain, highlights a stark disparity in the legal framework. It argues that while Chapter 5 of the BNS provides stringent punishments for sexual offenses against cisgender women and children, transgender individuals are relegated to the significantly weaker provisions of the Transgender Persons (Protection of Rights) Act, 2019.

A division bench comprising Chief Justice D.K. Upadhyaya and Justice Tushar Rao Gedela, while acknowledging the legitimacy of the issue, underscored the constitutional principle of separation of powers. However, recognizing the gravity of the matter, the court appointed Senior Advocate N. Hariharan as amicus curiae to provide assistance and has listed the case for a detailed hearing in December.

The Core of the Legal Challenge: A Legislative Chasm

The petition directly confronts the definitions within the new BNS, which, like its predecessor the Indian Penal Code (IPC), defines victims of most sexual offenses as "women" or "children." This leaves transgender women and children, who are frequent targets of sexual violence, without recourse to the more severe penalties prescribed in the primary penal code.

Dr. Jain, appearing in person, argued that this exclusion violates the fundamental rights of transgender persons, effectively creating a separate and unequal standard of justice. The plea draws attention to Section 18 of the Transgender Persons Act, 2019, which penalizes sexual abuse against a transgender person with imprisonment for a term of "not less than six months" which may extend to two years, along with a fine. This stands in stark contrast to offenses under the BNS, where punishments for similar crimes can extend to life imprisonment or even the death penalty.

The petition seeks a judicial interpretation that would read "transgender women" and "transgender children" into the relevant provisions of Chapter 5 of the BNS, thereby harmonizing the law with the constitutional mandate of equality and the principles laid down by the Supreme Court.

A Question of Domain: Legislative Prerogative vs. Judicial Interpretation

During the proceedings, the bench's observations centered on the judiciary's constitutional limits. Chief Justice Upadhyaya articulated the court's primary concern: that expanding the definition of a victim in a penal statute would amount to judicial legislation, a domain reserved for Parliament.

“The interpretation will not be possible prima facie," the Chief Justice remarked. "Had it been possible, Section 376 of IPC would have been interpreted long ago and included transgender women. It was never done. It was ultimately left to the legislature... to formulate the policy.”

The bench stressed that a cornerstone of criminal law, reinforced by Article 20 of the Constitution, is the principle of legality— nulla poena sine lege (no punishment without a law). An individual can only be punished for an offense that is clearly defined by the law-making body.

“Who has to do it? We cannot interpret something which is not there at all,” the Chief Justice added, questioning the petitioner. "The call to be taken is by the legislature, keeping in view the principles of criminal law that no one can be punished for an offence which is not defined by the rule-making authority."

The court pointed out that if the judiciary were to expand the scope of BNS Sections 63 to 73, it would be creating a new class of victims for offenses where the legislature had not explicitly done so. This, the bench opined, would be a transgression into the legislative realm.

The NALSA Judgment and the 2019 Act: A Framework in Question

The court's discussion with the newly appointed amicus curiae, N. Hariharan, delved into the legal history preceding the PIL. The Chief Justice traced the timeline from the landmark 2014 Supreme Court judgment in National Legal Services Authority (NALSA) v. Union of India , which recognized the fundamental rights of transgender persons and directed the government to formulate welfare policies.

This directive led to the enactment of the Transgender Persons (Protection of Rights) Act in 2019. While the Act was a step forward, establishing a national council and mandating non-discrimination, its penal provisions have been a subject of intense criticism. Legal experts and activists have long argued that the penalties under Section 18 are grossly inadequate and fail to provide transgender individuals with the same level of protection afforded to others.

The present PIL argues that this legislative framework fails to live up to the spirit of the NALSA judgment. By not providing equivalent protection against sexual violence, the state is failing in its constitutional duty to protect one of its most vulnerable communities.

The Path Forward: Amicus Curiae to Assist on a "Legitimate Issue"

Despite its strong prima facie view that the matter lies within the legislative domain, the court’s decision to issue notice and appoint an amicus curiae signals its unwillingness to dismiss the petition outright. The bench explicitly stated, “it was not saying that Jain has not raised a legitimate issue,” but that the remedy might lie in a different forum, such as a representation to the government.

The appointment of Senior Advocate Hariharan suggests the court is open to a deeper, more nuanced examination of the legal possibilities. His role will be to assist the court in navigating the complex interplay between constitutional rights, statutory interpretation, and the separation of powers. The central question he will likely address is whether there exists a jurisprudential pathway for the court to interpret the BNS in a manner that is inclusive and rights-affirming, without overstepping its constitutional boundaries.

This case, Dr. Chandresh Jain v. Union of India & Ors , is poised to become a significant test for the new Bharatiya Nyaya Sanhita and for the judiciary's role in addressing legislative gaps that perpetuate discrimination. As the Union Government prepares its response, the legal community will be watching closely to see whether the solution to this profound inequality will come from parliamentary amendment or a dynamic judicial interpretation.