No gay pride as yet: Why the SC ruling on Section 377 is not yet applicable to J&K
Srinagar, Sep 8: The Section 377 verdict may have come as a relief for many, but it is not applicable as yet in the state of Jammu and Kashmir.
For the verdict of the Supreme Court to be applicable, the Jammu and Kashmir would have to pass a resolution first. This is because the the state is governed by the Ranbir Penal Code, while Section 377 falls under the Indian Penal Code.
The RPC Section 377 which deals with unnatural offences says, "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in the section."
While on the face of it the SC order would not be applicable in J&K, legal experts cite a 1995 judgment of the Jammu and Kashmir High Court. It said that whenever a provision of the Indian Penal Code is struck down on the grounds of it being violative of the constitution, its corresponding provision in the RPC would also be struck down.
However the problem is that if the intricacies of the law are similar and the code is different then it would need to be challenged. This cannot be challenged by any person except for someone from the state of J&K itself. The other confusion is that whether the high court would have to pass an order that the Section in the RPC corresponding to Section 377 is the same.