Will the Delhi High Court order decriminalising homosexual acts between consenting adults be applicable across the country or just to Delhi?
Should the gay community in each state approach their respective High Court and seek relief citing the Delhi High Court ruling as a precedent?
Such questions and more are being raised after Thursday’s path breaking judgment by the Delhi High Court.
Two former judges of the Delhi High Court — Justice J.D. Kapoor and Justice R.S. Sodhi — said there is no scope for confusion.
They said in a 2004 judgment the Supreme Court had expanded the territorial jurisdiction of the high courts when dealing with constitutionality of any central law applicable across the country.
This means that the gay community across the country, except Jammu and Kashmir (IPC does not apply), can draw benefit from the Delhi High Court judgment legalizing consensual gay sex by reading down Section 377 of the IPC.
A three-judge bench of the Supreme Court had ruled in Kusum Ingots Vs Union of India: “An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will have effect throughout the territory of India subject of course to the applicability of the Act.”
“Indian Penal Code is a central act and when the Delhi High Court is reading down a specific section in it, the change is applicable all over the country and not merely Delhi. The situation would have been different if the court was dealing with a local law,” said Justice Kapoor.
Senior Supreme Court lawyer Rajiv Dhawan agreed that the apex court had expanded the territorial jurisdiction of the high courts when they are deciding on any central Act but feels “it just has a persuasive effect on other High Courts”.
“The litmus test is whether the Delhi High Court can stop proceedings in a police station or court outside Delhi (against those who indulged in consensual homosexual acts)," Dhawan said.