High Court’s 1995 ruling offers hope to Jammu and Kashmir's LGBT community

NEW DELHI: The Supreme Court ruling decriminalising gay sex may apply to Jammu and Kashmir too, as per a 1995 judgment of the state high court which said that when an IPC provision is struck down on grounds of violating the Constitution, its corresponding provision in the Ranbir Penal Code applicable to JK too would be struck down.

However, legal opinion is divided on whether the high court needs to make an order that the Section in Ranbir Penal Code corresponding to Section 377 of the IPC is the same.

Advocate Saurav Kirpal — who was part of the legal team that fought for legal rights of the LGBT community in the apex court — said a division bench of the J&K HC comprising Justice S Rizvi and R Nehru had ruled in 1995 “once the Supreme Court has held Section 303 of the Indian Penal Code (death penalty for murder by a life convict) violated Articles 14 and 21 of the Constitution, as a natural and logical corollary Section 303 of the Ranbir Penal Code (RPC) violated the same.”


Kirpal’s views came in the backdrop of the uncertainty of the LGBT community in J&K if the Supreme Court ruling applied to it as it did not mention the Ranbir Penal Code.

However, senior advocate Anand Grover feels the ruling would not apply to J&K.

“The intricacies of the law are the same, but it is a different code,” he contended. He said someone from the community in the state will have to challenge the RPC. “We cannot challenge it unless somebody from Kashmir comes forward.”

Section 303, IPC and Section 303, RPC, are absolutely identical and therefore, the mandate of the judgment of the Supreme Court was directly and automatically applied toSection 303 of RPC in the 1995 ruling. The question is whether the Section corresponding to 377 in RPC is identical.