Can Courts Bring Back a Deleted Section 377 IPC-Type Offence Through Interpretation of the BNS, 2023?
Delhi High Court Says Creating a New Criminal Offence Is a Legislative Function, Not Judicial Law-Making
Introduction
Can courts bring back a deleted Section 377 IPC-type offence through interpretation of the BNS, 2023? This question has acquired considerable constitutional significance after the Delhi High Court recently considered a Public Interest Litigation challenging the gender-specific structure of several sexual offences under the Bharatiya Nyaya Sanhita, 2023 (BNS).
A Division Bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia, during proceedings on 12 August 2026, indicated that although the petitioners’ concern regarding the apparent legal gap is understandable, the judiciary cannot create a new criminal offence merely because Parliament has omitted one.
The Bench emphasised that defining an offence is a matter for the legislature and questioned whether a court could, “by judicial fiat”, create an offence which Parliament had not enacted.
A crucial clarification is necessary at the outset: the proceedings presently reported are judicial observations during the hearing, rather than a final judgement finally deciding all constitutional issues raised by the PIL. The matter has been tagged with similar petitions and listed for further hearing.
That distinction is important in any responsible legal analysis.
What Is the Section 377 BNS Controversy?
Section 377 IPC historically criminalised certain sexual acts described as “carnal intercourse against the order of nature” involving a man, woman or animal.
However, its constitutional position changed fundamentally in Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
The Supreme Court unanimously held that Section 377 could not constitutionally criminalise consensual sexual relations between adults of the same sex. The provision nevertheless continued to have application in relation to non-consensual sexual acts, sexual acts involving minors and bestiality.
When the BNS replaced the IPC with effect from 1 July 2024, it did not contain an equivalent of Section 377.
The result is significant because the BNS’s principal rape provision, Section 63, is structured around a woman as the victim, while Sections 64 onwards prescribe punishment and related consequences. The statutory scheme also contains provisions specifically addressing offences against women, including sexual harassment, voyeurism and stalking.
The controversy is therefore not about restoring the unconstitutional criminalisation of consensual adult same-sex relations. It concerns whether the law should continue to criminalise non-consensual sexual conduct irrespective of the victim’s gender and how other conduct formerly covered by Section 377 should be treated.
What Did the Delhi High Court Say?
The petitioners sought a gender-neutral interpretation of several BNS sexual-offence provisions.
The Bench, however, identified the fundamental difficulty in their approach.
The Court observed, in substance:
“The offence has to be described. Which is the authority that can do it? It’s the legislature.”
The Bench further questioned whether the Court could provide something that Parliament had not provided and whether it could “by judicial fiat create an offence”.
The Court also observed that the problem confronting the petitioners arose from the dropping of Section 377, whereas the provisions concerning offences against women were “always offences against women”. According to the Bench, Article 14 could not simply be employed to reach the same destination by expanding provisions which Parliament had framed differently.
This is the central legal principle emerging from the hearing:
A constitutional court may interpret legislation, but it cannot ordinarily manufacture a new penal offence where Parliament has chosen not to enact one.
The Petitioners’ Case: Why Gender Neutrality Was Sought
The petitioners challenged the gender-specific framework of several BNS provisions, including provisions dealing with rape, sexual assault, stalking, voyeurism and related offences.
They contended that the existing framework may leave gaps where:
- The victim is a man;
- the victim is transgender or a third-gender person;
- the alleged offender is not a man; or
- The conduct does not fall within the statutory definition of rape or another existing BNS offence.
The petitioners therefore sought either a gender-neutral interpretation or directions to the Central Government to amend the law.
The constitutional argument is not frivolous.
Article 14 guarantees equality before the law and equal protection of laws. Article 21 protects life, personal liberty and dignity. Modern constitutional jurisprudence also recognises that sexual autonomy and dignity are integral to individual liberty.
The difficulty is that recognising a constitutional deficiency and prescribing a new criminal offence are two different judicial exercises.
The Parliamentary History Makes the Case More Compelling
The most substantial point that deserves emphasis is that the omission of Section 377 was not an issue unknown to Parliament.
The Parliamentary Standing Committee on Home Affairs, in its 246th Report on the BNS, expressly considered the complete deletion of Section 377.
The Committee noted that after Navtej Singh Johar, Section 377 continued to apply to non-consensual carnal intercourse involving adults, sexual acts involving minors and bestiality. It further observed that the BNS contained no corresponding provision for non-consensual sexual offences involving male, female or transgender persons and for bestiality.
The Committee therefore recommended that Section 377, in its constitutionally permissible residual form, be retained or reintroduced.
That recommendation was ultimately not incorporated into the enacted BNS.
This legislative history strengthens the Delhi High Court’s institutional concern.
If Parliament was specifically confronted with the issue and received a recommendation to address it, and the enacted statute nevertheless omitted the provision, it becomes difficult for a court to assume that the omission can simply be corrected through interpretation.
The Court may consider the constitutional consequences of that omission.
But creating the replacement offence is another matter.
Why the Court Cannot Simply Recreate Section 377
There is a fundamental difference between interpreting a statute and writing a statute.
Suppose a court were to create a Section 377-type offence under the BNS. It would have to determine:
- What precise conduct constitutes the offence?
- Must the offence be gender-neutral?
- What constitutes consent?
- Should the provision apply to all sexual acts outside vaginal intercourse?
- Should it cover male victims?
- Should it cover transgender victims?
- What should be the position where the accused is female?
- Should bestiality remain criminalised?
- What should be the punishment?
- Should the offence be cognisable and non-bailable?
- What exceptions should apply?
- How should it interact with the BNS provisions concerning rape, hurt and grievous hurt?
These are not merely questions of interpretation.
They involve legislative policy and criminal-law design.
A court answering all of these questions would effectively be drafting a new penal provision.
That is precisely the line the Delhi High Court appears unwilling to cross.
Article 14 Cannot Become a Substitute for Legislative Drafting
The petitioners’ reliance on Article 14 presents an important constitutional question.
If similarly situated victims receive radically different criminal protection merely because of gender, an equality challenge may arise.
But Article 14 does not automatically authorise a court to insert words into a criminal statute.
The Supreme Court has repeatedly distinguished between:
- striking down unconstitutional legislation;
- reading down legislation where the statutory language permits it; and
- creating an entirely new legislative regime.
The last category presents the greatest constitutional difficulty.
In a criminal case, this distinction becomes even more important because expanding the scope of an offence can expose a person to arrest, prosecution and imprisonment.
The principle of legality therefore operates as a safeguard not only for accused persons but also for the institutional integrity of criminal justice.
A Critical Distinction: Victim Protection Versus Judicial Creation of Liability
There is a temptation in constitutional litigation to reason that if a serious wrong exists, the Court must necessarily create an effective remedy.
That proposition requires qualification in criminal law.
The fact that conduct is harmful does not itself establish that the conduct is a statutory offence.
A criminal court cannot convict merely because judges consider particular conduct morally reprehensible or socially undesirable.
There must be a legally defined offence.
Thus, two propositions can simultaneously be true:
First, Parliament may have left a serious protection gap.
Second, the judiciary may nevertheless lack constitutional authority to create the missing offence.
The apparent contradiction disappears once the separation of powers is properly understood.
The Earlier Delhi High Court Decision: Gantavya Gulati
This controversy also needs to be read alongside Gantavya Gulati v. Union of India, 2024 SCC OnLine Del 5990, decided on 28 August 2024.
That PIL raised concerns about the absence of legal protection against non-consensual sexual acts following the repeal of Section 377.
The Delhi High Court did not itself recreate Section 377. Instead, it directed the Union Government to consider the petitioner’s representation expeditiously and left liberty to seek revival of the proceedings if there was undue delay.
That approach is instructive.
The Court recognised the seriousness of the issue while respecting the legislative domain.
The present proceedings therefore appear to continue an important institutional conversation already visible in the Delhi High Court’s jurisprudence.
The BNS’s Gender-Specific Structure Is the Larger Issue
The controversy should not be reduced merely to the question of “bringing back Section 377”.
There are actually two related but distinct questions.
Question One: Should Non-Consensual Sexual Conduct Be Criminalised Irrespective of Gender?
That is principally a question of criminal-law policy for Parliament.
Question Two: Can Existing BNS Provisions Be Interpreted to Provide That Protection?
That is a question for the judiciary, but only within the permissible limits of statutory interpretation.
The distinction is crucial.
A court may potentially interpret ambiguous statutory language consistently with constitutional guarantees.
But if the statutory language clearly identifies the victim, offender or prohibited conduct, replacing those legislative choices with entirely different categories may cross the line into judicial legislation.
Bestiality Presents a Separate Legislative Problem
There is another issue that deserves greater attention: bestiality.
The Supreme Court’s decision in Navtej Singh Johar was concerned principally with the unconstitutional application of Section 377 to consensual sexual relations between adults.
The Parliamentary Standing Committee expressly noted that Section 377 had continued to apply to acts of bestiality and recommended retaining the provision in the new criminal law.
The BNS contains no Section 377 equivalent.
This demonstrates why simply making the BNS rape provisions gender-neutral would not completely solve the legislative problem.
Bestiality involves an entirely different legislative question, requiring Parliament to determine the prohibited conduct, the appropriate offence and punishment.
A judicial attempt to recreate Section 377 wholesale would therefore involve multiple policy decisions extending far beyond gender neutrality.
What Should Parliament Do?
If Parliament concludes that the BNS contains a genuine gap, it can enact a carefully drafted provision.
In my view, a modern provision should avoid the historically problematic phrase “against the order of nature” and instead define prohibited conduct in precise, constitutionally neutral terms.
The legislative exercise should consider:
- gender-neutral protection for victims;
- gender-neutral criminal liability;
- absence of valid consent as a central ingredient;
- protection of transgender and gender-diverse persons;
- consistency with POCSO;
- appropriate treatment of persons with disabilities;
- separate treatment of bestiality;
- clear punishment provisions; and
- procedural consequences such as cognisance and bail.
Such drafting would be preferable to judicially reconstructing a nineteenth-century provision whose terminology itself became constitutionally problematic.
What This Development Does Not Mean
The Delhi High Court has not held that sexual violence against men or transgender persons is lawful.
It has not held that Article 14 permits discrimination.
It has not held that Parliament cannot enact a gender-neutral sexual offence.
Nor has the Court finally determined every constitutional issue raised in the PIL.
What the Bench has indicated is narrower and institutionally significant:
The judiciary cannot simply create a new offence to fill a legislative omission.
The petitions remain pending, and the matter is to be heard further.
Conclusion
The answer to the question “Can courts bring back a deleted Section 377 IPC-type offence through interpretation of the BNS, 2023?” is, on the Delhi High Court’s present reasoning, no—not by judicial fiat.
The Court’s position rests upon a fundamental constitutional distinction: interpretation is a judicial function; creation of a new criminal offence is ordinarily a legislative function.
The issue is particularly important because the omission of Section 377 was specifically noticed during parliamentary scrutiny. The Standing Committee on Home Affairs recommended retaining a constitutionally permissible version of the provision, particularly to address non-consensual sexual offences and bestiality, but Parliament ultimately enacted the BNS without an equivalent provision.
The resulting gap is therefore a legitimate subject of constitutional concern and legislative debate.
But the answer cannot be for the Court to write a new Section 377 into the BNS through interpretation.
The more constitutionally sustainable solution is for Parliament to enact a modern, precise and genuinely gender-neutral sexual-offence provision, if it considers such protection necessary.
The deeper lesson is one that every constitutional court must observe, particularly in criminal jurisprudence: a court may protect rights against unconstitutional legislation, but it cannot assume the legislative pen merely because Parliament’s silence has produced a difficult legal problem.
That boundary protects not only the separation of powers but also the rule of law itself.
Key Authorities
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
- Gantavya Gulati v. Union of India, 2024 SCC OnLine Del 5990.
- Parliamentary Standing Committee on Home Affairs, 246th Report on the Bharatiya Nyaya Sanhita, 2023.
- Bharatiya Nyaya Sanhita, 2023, particularly Sections 63–79 dealing with rape and specified sexual offences.
Current Proceeding
Current proceeding: Delhi High Court, Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia, hearing dated 12 August 2026. As of the present reporting, a final reported law-report citation for the August 2026 proceedings should not be invented; the official case number/order should be verified before publication.
Need Legal Guidance on the Section 377 BNS Issue?
The evolving legal position on Section 377, the Bharatiya Nyaya Sanhita (BNS), 2023, gender-neutral sexual offences, and the limits of judicial interpretation raises important constitutional and criminal-law questions.
If you require professional legal advice or assistance concerning criminal law, constitutional law, BNS provisions, sexual-offence laws, or related Supreme Court matters, consult an experienced Supreme Court Advocate.
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FAQs: Section 377 BNS
1. Can Courts Restore Section 377? Under the Bharatiya Nyaya Sanhita (BNS), 2023?
The Delhi High Court has indicated that courts cannot create a new criminal offence through judicial interpretation merely because Parliament omitted a Section 377-type provision from the BNS. Creating and defining a new criminal offence is ordinarily a legislative function.
2. Why Was Section 377 Not Included in the BNS, 2023?
The Bharatiya Nyaya Sanhita, 2023, which replaced the IPC from 1 July 2024, does not contain an equivalent of Section 377 IPC. The article notes that the Parliamentary Standing Committee on Home Affairs had considered the issue and recommended retaining a constitutionally permissible version of the provision, but the recommendation was not incorporated into the enacted BNS.
3. Does the Deletion of Section 377 From the BNS: Mean Non-Consensual Sexual Acts Against Men Are Not Criminalised?
The issue is more complex. The controversy concerns whether the gender-specific structure of BNS sexual-offence provisions leaves gaps in protection for male, transgender or other victims in cases of non-consensual sexual conduct. The Delhi High Court proceedings are concerned with whether such a gap can be filled through judicial interpretation or requires legislative action.
4. Can Article 14 Be Used to Make BNS Sexual Offences Gender-Neutral?
Article 14 guarantees equality before the law and equal protection of the laws. However, the article explains that invoking Article 14 does not automatically authorise courts to insert entirely new words, offences or legislative categories into a criminal statute. There is an important constitutional distinction between interpreting legislation and creating a new criminal offence.
5. What Should Parliament Do About the Section 377 Gap Under the BNS?
If Parliament considers that the BNS contains a genuine legal gap, it can enact a modern, precise and gender-neutral sexual-offence provision. Such legislation could address non-consensual sexual conduct, transgender and gender-diverse victims, consent, punishment, procedural safeguards and the separate issue of bestiality.
Key Takeaways: Section 377 BNS Controversy
- Section 377 IPC has no direct equivalent in the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC from 1 July 2024.
- The Delhi High Court is examining whether existing BNS provisions can address the alleged legal gap concerning non-consensual sexual conduct involving victims of different genders.
- The Court has indicated that judges cannot create a new criminal offence through “judicial fiat”. Defining an offence and prescribing its punishment are ordinarily functions of Parliament.
- Article 14 cannot automatically be used to rewrite a criminal statute. There is a constitutional distinction between interpreting ambiguous legislation, reading down unconstitutional provisions, and creating an entirely new criminal offence.
- The Parliamentary Standing Committee on Home Affairs had already considered the deletion of Section 377. Its 246th Report recommended retaining or reintroducing a constitutionally permissible residual provision, particularly concerning non-consensual sexual acts and bestiality.
- The issue goes beyond gender neutrality. Simply making rape provisions gender-neutral would not necessarily resolve every issue previously associated with Section 377, including the separate question of bestiality.
- The petitioners’ constitutional concerns remain significant. Article 14, Article 21, and dignity and sexual autonomy form an important part of the broader constitutional debate surrounding protection from sexual violence.
- Parliament, rather than the judiciary, is positioned to fill any legislative gap. A modern provision could provide gender-neutral protection, define consent precisely, protect transgender and gender-diverse persons, and separately address bestiality and procedural consequences.
- The Delhi High Court has not declared sexual violence against men or transgender persons lawful. Nor has it finally decided every constitutional issue raised in the PIL. The present proceedings concern the limits of judicial interpretation and legislative power.
- The proceedings are not yet a final judgement on the entire controversy. The reported observations were made during the 12 August 2026 hearing, and the matter remains pending for further hearing.
Summary
In short: The Delhi High Court’s Section 377 BNS controversy concerns whether courts can use constitutional and statutory interpretation to fill the gap created by Parliament’s omission of Section 377 from the BNS, 2023. The Court has indicated that creating a new criminal offence is ordinarily a legislative function, not a judicial one. Any comprehensive replacement for the deleted Section 377-type offence would therefore need to come from Parliament through clear and constitutionally compliant legislation.
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