DEBATE OVER SECTION 377 IN BNS

October 24, 2024

Introduction

The Indian Government has replaced the old, colonial, orressive, subjugating criminal laws with the new set of progressive laws as Bhartiya Nyaya Sanhita (BNS, replacing Indian Penal Code), Bhartiya Nagrik Suraksha Sanhita (BNSS, replacing Code of Criminal Procedure), and Bhartiya Sakshya Adhiniyam (replacing Indian Evidence Act). With respect to BNS, the current debate is surrounding Section 377, which was there in the IPC and was declared to be unconstitutitonal in Navtej Singh Johar v. Union of India (2018). Section 377 was partially struck down to the extent that it criminalized consensual sex with the same-sex people or the homosexual couples. As a discriminatory provision and against the Constitution, it was struck down in the said case.

The said provision remains in force with respect to other kinds of unnatural sex. However, in the replaced law for IPC, i.e., BNS, the proviso of Section 377 has completely been done away with. It means now if sexual assault or some other kind of unnatural sex is done with a homosexual couple, men, women, or trans persons, then it is not a criminal offense.

Accordinly, a petition in the case of Priya Shrma and Other v. Union of India (2024) was filed in the Supreme Court to again reinforce Section 377 of the IPC in the new BNS to the extent it was not declared unconstitutional.

The present article aims to present before the readers the findings of the Navtej Singh Johar v. Union of India (2018) and the  petition filed in the Supreme Court to restore the provision and the decision rendered by the Court.

The Role of the Supreme Court

Under the Constitution of India, the Supreme Court and the High Courts have been given the role to protect the fundamental rights of the citizens and also to protect the basic tenets of the Constitution. Accordingly, under Article 13, when any law made by the Parliament and the nature of such law that abrogates or infringes the constitutional right, then the courts may declare it to be null and void. If it violates any of the basic functions of the Constitution, then it shall also be declared to be null and void.

Also, the Supreme Court and that the High Courts are the highest courts in the country and the Courts of Record. Accordingly, whenever any decision is rendered by these courts, it shall be binding on all the courts.

Under Articles 142 and 141, some special powers are given to the Supreme Court. According to Article 141, law declared by the Supreme Court shall be binding on all the courts in the country. And according to Article 142 of the Constitution, the Supreme Court may pass such order as it may deem fit in order to do complete justice in a matter.

These two provisions have been instrumental in shaping the constitutional jurisprudence in India.

Petition in the case of Priya Sharma v. Union of India (2024)

In this case, a petition was filed in the Supreme Court praying for directing the Parliament to declare that sexual offenses committed against homosexual couples, or the unnatural sexual offenses, to be an offense under the BNS.

It was argued that in Navtej Singh Jaohar v. Unin of India, the whole Section 377 was not struck down and a part of it only was struck down. Therefore, Parliament must not have deleted the provision in Section 377 completely. Also, it violates Article 14 of the Constitution, i.e., the right to equality, as lesser protection has been provided to the homosexual couple in sexual offenses as compared to the other couples.

A petition was accordingly filed. It was also asserted that the Supreme Court, in its exercise of power under Article 141, has filled the gap in law by framing guidelines, and these guidelines have served the nation in the same manner as the law of the land until some law is framed by the legislature. For example, in the Vishaka Guidelines case of 1997, guidelines were issued by the Supreme Court to prevent the sexual harassment of women at work, and these guidelines remained in force until Parliament came up with a law on the subject in 2014 to deal with the situation. Also, in Selvi v. State of Karnataka (2010), the Supreme Court issued guidelines with respect to narco-analysis, polygraphs, and brain mapping, and till the Parliament comes up with a definite law on this subject, these shall serve as equivalent to the law made by the Parliament. In Bhudda Dev Karmaskar v. Union of India, guidelines were issued to protect and ameliorate the rights of sex workers. Certain guidelines relating to the protection of their fundamental rights were issued.

In Supriyo v. Union of India (2023), again guidelines were issued on how to deal with the homosexual couple. Based on these previous instances, a petition was filed to the Supreme Court in the case of Priya Sharma v. Union of India (2024) to pray to direct the Legislature to frame an effective law on the subject or meanwhile issue guidelines to protect homosexual couples from unnatural sex.

The decision of the Supreme Court

The Supreme Court categorically denied to make the sexual offenses against homosexuals offenses as offenses or to issue guideliens to that effect. It was concluded that

  • The Constitution follows the principle of separation of power. According to this, a clear demarcation of power is to exercise between legislative, executive, and judiciary. The lawmaking function and power fall upon the legislature. And the judiciary ought not to interfere in the work of the legislature or the executive. This is known as judicial restraint.
  • If the Parliament, in its wisdom, has excluded any particular provision, then the judiciary, in its judicial power, can’t direct the Parliament to restore that, as that would be tantamount to disrupting the system of separation of power.
  • The same petition was filed in the Delhi High Court, and the Suprem Court also rejected it.

Conclusion

In the case Priya Sharma v. Union of India and Ors. (2024), the Supreme Court has relied on the constitutional tenet of separation of power and has rightly refrained from the exercise of its power under Article 141 of the Constitution.

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