The Supreme Court has observed that the question of criminalising homosexuality involved very large and significant Constitutional issues and referred the 2013 decision making gay sex illegal to a five-judge Constitution Bench. In 2013, the Court had overturned the 2009 ruling of the Delhi High Court which found Section 337 to be a breach of the fundamental right to equality. The 2013 decision has disappointed many who thought Section 337 should have been stamped as it smacked off Victorian morality. The UK had legalised homosexuality before 1960. The Supreme Court bench would criminalised homosexuality gave the legislature the responsibilty of making the final decision. A batch of petitions to the Court led by NGO Naz foundation had challenged the 2013 judgment. A number of eminent lawyers including Kapil Sibal, Anand Grover and Colin Gonzalves had argued that the 2013 Supreme Court judgment curtailed individual rights. But this time the Court decided that only a larger bench will issue a ruling as the matter was of Constitutional importance.
The appeal for striking off Section 377 had met with opposition from the Apostolic Churches alliance and the Muslim Personal Law Board. Gay rights are not explicitly supported by Hinduism. The removal of the law by a Constitutional bench would be authoritative and the petitioners should be satisfied with the referral in view of the religious resistance. Considering the issue from a societal and traditional angle it may not be possible for all to equate gay rights with minority rights and democratic values. Advance countries are moving towards legalising homosexuality and India should follow the trend but it will not be easy.