Supreme Court refers to 5-judge bench petition against gay sex ban, LGBT groups hopeful

The activists from human rights groups and LGBT community demanding scrapping of the controversial section of the IPC called the court move a progressive step.

The petition thus has not been dismissed yet by the Supreme Court, neither it issued any notice to the government, leaving hope for the rights groups.

The apex court said: "There are important constitutional questions involved in the issue relating to decriminalizing consensual gay sex within the privacy of a house."

"This is a progressive step and a move in the right direction against the disastrous judgement two years ago against the High Court verdict that read down Section 377 and had de-criminalized gay sex," said an LGBT activist present outside the court.

The section 377 criminalises consensual sexual activities of Lesbian, Gay, Bi-sexual and Transgender (LGBT) adults in private.

Chapter XVI, Section 377 of the IPC dates back to 1860 introduced during the British rule of India, and it criminalises sexual activities "against the order of nature", arguably including homosexual acts.

According to it, Unnatural offences means: "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 term which may extend to ten years, and shall also be liable to fine."

An apex court bench headed by chief justice TS Thakur  heard the curative petition.

Chief Justice Thakur reportedly told  advocate Anand Grover representing petitioner Naz Foundation, that the new bench would conduct a comprehensive hearing of the arguments  for the protection of the dignity and rights of the LGBT people.

Senior counsel Kapil Sibal representing in the case along with other high profile lawyers said human sexuality should not be criminalised and right to sexuality  is a precious right which cannot be curtailed unconstitutionally.

Meanwhile, welcoming the move, former Congress leader Shashi Tharoor told media: "Today's move shows that the SC wants to take the matter to a positive direction. This is a positive development."

The Supreme Court on Dec 11, 2013 set aside a landmark pro-LGBT judgement of Delhi High Court in 2009, by ruling that homosexuality would continue to remain illegal in the country and would not be constitutionally invalid.

The Delhi High Court verdict of July 2009 had not been challenged by the Government of India. Since then it is like a law in India. But the SC verdict changed all that and gay sex will again be illegal in India.

The Delhi Court had read down Section 377 of the Indian Penal Code that criminalized homosexuality, ruling that gay sex between two consenting adults in private is not an offence.

The Supreme Court in 2014 rejected a petition filed by the Centre seeking a review against its  2013 verdict that criminalized gay sex.

India's LGBT groups and HIV/AIDS fighters had been be vocal about decriminalizing homosexuality, which is a legacy of the British colonial law.

Section 377 has been used by the police and other groups to harass homosexuals.