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Refuses to Create Section 377-Like Offence in BNS, Says Legislature Must Act
In a significant ruling that underscores the limits of judicial power, the
has declined to fill the legislative vacuum created by the omission of
from the newly enacted
. A Division Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia held that courts cannot
"by
create an offence"
and that defining criminal conduct is exclusively a legislative policy matter. The observation came during the hearing of a
seeking a gender-neutral interpretation of various sexual offence provisions under the BNS, which replaced the IPC from
.
Background: The Section 377 Conundrum
Section 377 of the IPC had historically criminalized
"
"
with any man, woman, or animal, prescribing punishment of up to ten years. The
's landmark
judgment in
decriminalized consensual sexual relations between adults of the same sex, but left the provision intact for non-consensual acts, acts involving minors, and bestiality. When the BNS was enacted, however, Section 377 was entirely dropped, leaving a legal gap for non-consensual sexual acts perpetrated against men, transgender persons, and individuals of other gender identities who do not fall within the gender-specific rape provisions.
The petitioners, a group of advocates and a former civil servant, challenged the gender-specific framework of several BNS provisions—including those relating to rape, sexual assault, stalking, and voyeurism—arguing that they restrict the perpetrator to "a man" and the victim to "a woman." This, they contended, excludes men, transgender, and third-gender persons from adequate legal recourse, and also fails to cover situations where the alleged perpetrator is a woman or a transgender person. The petition sought either a gender-neutral reading of these provisions or a direction to the central government to amend the law.
Court's Stance: Legislative Policy, Not
During the hearing, the Bench expressed empathy for the petitioners' concerns but firmly delineated the boundaries of judicial intervention.
"We understand your [petitioners'] anxiety, but these are legislative policy matters… The offence has to be described. Which is the authority that can do it? It's the legislature. What can we do about it? Can we provide something which is not provided for by the legislature? Can we by
create an offence?"
the Court asked.
The Bench further clarified that the offences criminalised under the BNS are specifically "offences against women" and cannot be read down to encompass
that were previously covered by Section 377.
"The problem which you are facing is dropping of Section 377 [IPC] from BNS. Now, to reach that, you are targeting the offences against women. The offences against women were always offences against women. There was a separate category of
, which has been dropped. Now, you can't use
[of the Constitution] to reach the same destination by targeting offences against them because those offences were always there,"
the Bench observed.
The court’s reasoning reflects a strict adherence to the . Creating a new criminal offence involves a delicate balancing of societal interests, definitional precision, and prescribed penalties—tasks that lie within the exclusive domain of the legislature. The judiciary, while empowered to strike down unconstitutional laws, cannot supply what Parliament deliberately or inadvertently omitted.
Expert Voices: The Legal Gap and Its Consequences
The omission of Section 377 from the BNS had been flagged by legal experts and activists long before the code came into force. described the removal as "illogical, arbitrary and unconstitutional," arguing that a legal wrong without a remedy violates constitutional guarantees. He noted that non-consensual sexual acts involving men and transgender persons were earlier covered by Section 377 and questioned why that protection had been removed. "A man having sex with a man which is non-consensual or a man having non-consensual
