WION Exclusive: Meet the lawyer behind the Delhi High Court plea challenging India’s Bharatiya Nyaya Sanhita

On 13 August 2024, two days before India celebrated its 78th Independence Day, the honourable Delhi High Court took up the Public Interest Litigation(PIL) filed by Advocate Gantavya Gulati, challenging the removal of Section 377, owing to the replacement of the Indian Penal Code by the new Bharatiya Nyaya Sanhita(BNS.)

This author caught up with Advocate Gulati, hours after the hearing to know more.

Why have you filed the petition?

“I have filed this petition to address a significant legal gap created by the Bharatiya Nyaya Sanhita (BNS), the new criminal code which has replaced IPC Section 377. This section was particularly vital for the LGBTQIA+ community, as it was the only provision that provided them with specific and effective legal safeguards. With its removal, individuals are now left without any other effective remedy.”

Your PIL which is public interest litigation, says that it seeks legal protection against ‘non-consensual sexual acts?’ What does this mean?

“Non-consensual sexual acts would be as per the apex Court’s judgement in Navtej Johar. The Supreme Court had partially read down Section 377 in the 2018 judgement. The PIL seeks to restore that protection that was lost in the repeal of Section 377 in the Bharatiya Nyaya Sanhita.”

Section 377 before 2018 spoke about ‘unnatural acts’ that also included homosexuality, the whole gambit of queerness. What exactly did they mean by unnatural acts?

'Section 377 was essentially a residual provision within the IPC. While rape was explicitly addressed under Sections 375 and 376, Section 377 had a broader scope. It encompassed bestiality, and same-sex relationships, and also offered protection to heterosexual men against certain non-consensual acts.

Section 377 and your writ speak about bestiality and animal rights. But what now for those who are passionate about animal rights?

The Bharatiya Nyaya Sanhita is conspicuously silent on this matter. Previously, bestiality was addressed under IPC Section 377, but with its omission, this particular protection has been removed. As a result, animals, a vulnerable class of living beings, now face increased risk without the legal safeguards that once existed

Why did they term it as unnatural?

“It was labelled ‘unnatural’ based on the traditional biological definition of natural sex. In this context, ‘natural sex’ was narrowly defined as vaginal intercourse, excluding all other forms of sexual expression.”

Anything that was not ‘that’ was termed ‘unnatural?’

“Exactly!”

Do you have any data to support that queer people and disadvantaged groups are more at risk than privileged sections of society?

InNaz Foundation vs. Government of NCT of Delhi,the Delhi High Court acknowledged affidavits detailing severe harassment and abuse against LGBTQIA+ individuals. One case involved a hijra in Bangalore who was gang-raped and tortured by both hooligans and police due to their sexual identity.

Another incident in Tamil Nadu involved a eunuch who, after enduring police torture, immolated himself inside a police station. These cases highlighted how these particular groups are at risk of gross violations of fundamental rights and are disproportionately targeted.

The narrative around this P.I.L. is that it is an issue concerning solely the queer community, that too, just men. But what about, heterosexual men? What is the BNS’ stand on this?

“The BNS protection against sexual offences is framed to cover individuals broadly, but similar to the situation with the queer community, the removal of Section 377 means that there is no provision that adequately protects the heterosexual men as well in cases of non-consensual sexual acts, especially those outside the context of traditional gender norms.”

Since you are a 23-year-old lawyer and a fairly young one. On the 13th, were you nervous, were you scared? What was it that you were expecting?

“I was fairly positive about what turned out to be the bench’s reaction now. The Honourable Bench was very considerate about the matter and did acknowledge that this certain lack had created a ‘gap’ in the criminal system. As you might have observed in the proceedings as well, the notice has not been issued in the matter and it has been simply adjourned for Mr Ahluwalia i.e. the Counsel for the Respondent, to seek instructions on that. I am fairly positive that in the next hearing, the Court would issue notice and the matter would go forward.”

Before 2018, if a consensual same-sex act is occurring in a private space, it was criminalised, did that not inherently go against the Right to Privacy?

The criminalisation of consensual same-sex acts in private directly conflicted with the Right to Privacy, recognized inJustice K.S. Puttaswamy vs. Union of Indiaas part of Article 21. This principle was central to theNavtej Singh Joharjudgement, where the Supreme Court affirmed the right to express one’s sexual orientation, whether publicly or privately, deeming Section 377 unconstitutional in this context.

What interim relief did you seek from the honourable Court?

I sought interim relief to preserve the protections that were there under Section 377 until a final verdict is reached in this matter. This involved either the reinstatement of Sec 377 or a gender-neutral interpretation of existing sexual assault laws to ensure an effective remedy.

What would you say to a queer person reading these words?

I understand the fears and uncertainties that these legal gaps create, but please know that you are not alone. This fight is for you, for all of us, to ensure that the law respects and protects every individual, regardless of their sexual orientation or gender identity. Your voice, your existence, and your rights are central to this cause, and I will continue to advocate for the justice and equality that you are entitled to.

Way forward

While this PIL is the first to question the BNS, the Indian queer rights history is a long one with many people contributing to it.

Will equal rights be achieved? The community and history are waiting with bated breath.