On September 6, the Supreme Court decriminalised sexual relations between consenting adults of the same sex. The historic judgement has thrust Jammu and Kashmir into a debate about individual liberties but has also given rise to confusion.
Some media reports raised questions about whether the Supreme Court order reading down Section 377 of the Indian Penal Code, which criminialised homosexuality, would apply to Jammu and Kashmir. This is because the state has a separate constitution and penal code that require central laws to be approved by the assembly before they can be implemented in the territory.
However, legal experts argue that a decree of the Supreme Court stands on a different platform than a law made by Parliament. They point to a 1995 judgment of the Jammu and Kashmir High Court about whether a provision of the Indian Penal Code struck down by the Supreme Court would apply to the state. The High Court held that the direction of the Supreme Court would indeed apply to the state.
Regardless of the question about whether the judgement can be directly applied to the state, said queer activist Ajaz Bund, the Supreme Court verdict on 377 could act as a benchmark judgement to move a petition in the Jammu and Kashmir High Court to have the mirror law in the state overturned.
For now, he said, the judgement has the potential to start a debate about queer rights in the Kashmir Valley. “The ground has been built to reinforce a positive attitude,” he said. “We have to move beyond religion and look at this matter from the framework of human rights.”
The Jammu and Kashmir state follows its own penal code called the Ranbir Penal Code. It was framed in 1932 along the lines of the Indian Penal Code, during the rule of the Dogra monarch, Ranbir Singh. Section 377 of the Ranbir Penal Code criminalises same sex relationships, as did the recently read-down Section 377 of the Indian Penal Code.
Justice Hasnain Masoodi, who retired as a judge of the Jammu and Kashmir High Court in 2016, disagreed with the popular belief that the Supreme court judgement was not directly applicable to Jammu and Kashmir. “My understanding is that it does apply,” he said.
Masoodi said that the Supreme Court did not merely scrap the 158-year-old law –
it also commented on the philosophy of the law. The Supreme Court, he said, “struck down a mindset”.
“The judgement tells us that whatever was taken as an aberration, a mental ailment, is not so,” said Masoodi. “The judges say that history owes an apology [to the LGBT community]. We can not have an island of different law when such a strong judgement comes from the Chief Justice of the country.”
Masoodi pointed out that regardless of Article 370 of the Indian Constitution that gives autonomy to Jammu and Kashmir, the Supreme Court judgement was applicable owing to Article 141. This provision states that “the law declared by Supreme Court to be binding on all courts within the territory of India”.
In addition, a lawyer who did not wished to be identified pointed to a 1995 judgement of the Jammu and Kashmir High Court ruling that if the Supreme Court invalidated a law that was mirrored in the state’s books, this would be directly applicable to the state. The verdict came in a case titled Jankar Singh vs State, when a Division Bench of the Jammu and Kashmir High Court struck down Section 303 of the Ranbir Penal Code, relating to the death penalty for a person who committed murder while serving life imprisonment.
The Division Bench had said that the Supreme Court judgement was binding not only under the Article 141 of the Constitution but also the “doctrine of binding precedent”. “The moment a judgment is pronounced by the Supreme Court, the law is declared and everyone is supposed to know the law,” it said.
The Division Bench added, “When the highest court in the land gives an exposition of law, it has to be taken as if that was always the position of law.”
Long road ahead
Despite the court decision, LGBT people in the state will still face a struggle. In the Kashmir Valley, until the late 1970s, there were several men who were publicly known to be homosexuals and society generally showed tolerance.However, this faded as Islamic conservatism in the Valley intensified.
Over the years, with Islamic militancy sweeping the Valley, sexual minorites have sought acceptance within a religious framework. Bafflingly, at a public event in December, some members of the transgender community in Kashmir expressed support for Section 377.
Syed Jaasirah, who has researched transgender matchmakers in Kashmir, said that the community’s support for the law represented “the intensity of having internalised marginalisation”. She explained: “Societal morality dictates their behaviour and opinions and most of the time they have to hide their desires.”
Though the Supreme Court judgement would strengthen the community’s struggle in Kashmir, Jaasirah said, the community in Kashmir still faced multiple constraints. “Unless the possibility of such laws and rights is known to them, it is difficult for them to talk about it,” she said.
At this juncture, it is imperative for society to be made more sensitisive to debates around gender and sexuality, she said. “The repercussions can be many in a society like ours where even the leading daily makes no mention of such an important Supreme Court verdict,” Jaasirah said. “Society has been discriminatory and as much as it is easy for people like us to talk about it. But for people on the receiving end of oppression, the struggle doesn’t end with a judgment.”