New Delhi: The Supreme Court on Monday agreed to revisit its 2013 ruling criminalizing consensual sex between same sex adults, clearing the way for a fresh round of debate on a controversial colonial-era law governing homosexuality in India. Responding to a petition filed by members of the gay, bisexual and transgender community who said they felt persecuted for their sexual orientation, a three-person bench of judges referred Section 377 to a larger bench for reconsideration, noting that Indians who are gay “should never remain in a state of fear,” and that “societal morality also changes from age to age.”

“Law copes with life and accordingly change takes place,” the court said. In what gay activists are seeing as a major boost in their fight for repealing of a contentious law that makes consensual sexual acts punishable under law, the Supreme Court today said that there was need to revisit the top court’s own verdict of 2013 that upheld the constitutional validity of Section 377 of the Indian Penal Code. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

Justice Chandrachud then goes on to further examine Justice Singhvi’s 2013 decision, referred to as “Koushal”, based on the full title of the case, ‘Suresh Kumar Koushal vs Naz foundation.’

“The view in Koushal that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT. “We are a small number and we need to keep shouting.”

Introduced in 1861, Section 377 of the Indian Penal Code imposes a 10-year prison sentence on “carnal intercourse against the order of nature with man, woman or animal.” It most often applies to sex between men, but also extends to oral and non-vaginal sex of any kind.
The Supreme Court of India orders a review of Section 377, a colonial-era law that criminalizes consensual sex between men, and of the Court's December 2013 verdict that upheld the law. In August 2017, the Supreme Court ruled that all Indian citizens have a constitutional right to privacy, noting in the judgment that "sexual orientation is an essential attribute to privacy."