A three-judge bench of the Supreme Court on Monday, headed by Chief Justice of India Dipak Misra, said that it would reconsider and examine the Constitutional validity of Section 377.
The apex court also issued a notice to the Centre, seeking response on a writ petition filed by five members of LGBT community, who say they live in fear of Police because of their natural sexual preferences.
In May 2017, India faced a series of tough questions at the United Nations Human Rights Council's (UNHRC) Universal Periodic Review (UPR) , with a host of the 112-member countries questioning it on the penalisation of same-sex sexual rights.
With India's stand on granting equal rights to sexual minorities, several countries recommended a repeal of section 377 of the IPC. Countries like Sweden, Norway, Ireland, Israel, Canada, Iceland, Denmark and Spain were some of the countries who raised the issue. In its reply, India said that same-sex sexual relationships were decriminalised, and were then re-criminalised by the Supreme Court, when it dismissed a review petition by the central government in 2014. With a curative petition on the matter to be heard soon, the government said that there will be a review in the matter.
Surprisingly for India, several countries asked it to review FCRA to defend human rights activists.
In 2013, activists had said thousands from the LGBT community became open about their sexual identity during the past four years after the Delhi High Court decriminalised gay sex and they were now facing the threat of being prosecuted.
They had submitted that criminalising gay sex amounts to violation of fundamental rights of the LGBT community. The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists against its December 2013 verdict declaring gay sex an offence punishable upto life imprisonment.
The apex court had then said it did not see any reason to interfere with the December 11, 2013 verdict and had also rejected the plea for oral hearing on the review petitions which are normally decided by judges in chamber without giving an opportunity to parties to present their views. It revived the penal provision making gay sex an offence punishable with life imprisonment, in a setback to people fighting a battle for recognition of their sexual preferences.
While setting aside the July 2, 2009 verdict of Delhi High Court, the apex court had held that Section 377 of IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court was legally unsustainable.
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