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Will J&K Govt strike can down Sec 303 of RPC to meet LGBT community's demand?
9/8/2018 10:39:34 PM
Early Times Report

JAMMU, Sept 8: The Supreme Court's September 6 ruling that decriminalized gay sex could be applied to Jammu and Kashmir too, as per a 1995 judgment of the Jammu and Kashmir High Court. The 1995 judgment had 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 Jammu and Kashmir too would be struck down. However, legal opinion on the issue is divided on whether the Jammu and Kashmir High Court needs to make an order that the Section in Ranbir Penal Code corresponding to Section 377 of the IPC is the same. According to Advocate Saurav Kirpal, who was part of the legal team that fought for legal rights of the LGBT community in the Supreme Court, has opined that "a division bench of the Jammu and Kashmir High Court comprising Justice S Rizvi and R Nehru had ruled in 1995 that 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".
Advocate Kirpal's opinion came in the backdrop of the uncertainty of the LGBT community in Jammu and Kashmir "if the Supreme Court ruling applied to it as it did not mention the Ranbir Penal Code".
"The intricacies of the law are the same, but it is a different code," Kirpal has said, adding that "someone from the community in the state will have to challenge the RPC". "We cannot challenge it unless somebody from Jammu and Kashmir comes forward," he has further opined.
Section 303, IPC and Section 303, RPC, are identical and, therefore, the mandate of the judgment of the Supreme Court was directly and automatically applied to Section 303 of RPC in the 1995 ruling. The question is whether the Section corresponding to 377 in RPC is identical.
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