The petition by prominent civil society members of the lGBT community seeking freedom to express their sexual rights has been referred to the Chief Justice of India after the Supreme Court on Wednesday decided to wait till a Constitution Bench is to decide on the validity of IPC Section 377 penalising homosexuality.

This is the first time that the challenge to IPC Section 377 is made by affected persons of the lesbian, gay, bisexual and transgender (lGBT) community. The petition pending with the Court was filed on behalf of Naz Foundation, working among this community on HIV and related issues.

Senior advocate Arvind Datar appeared for the petitioners, which included prominent names such as renowned Bharatnatyam dancer Navtej Singh Johar, popular chef and author Ritu Dalmia, founder of Neemrana chain of hotels Aman Nath, businesswoman Ayesha Kapur and senior journalist Sunil Mehra. He said that unlike the Naz Foundation case, the petitioners here were aggrieved persons claiming violation of their fundamental rights to exercise their sexual preferences. The petition attacked Section 377 as violative of their fundamental rights.

A bench of Justices Sharad Arvind Bobde and Ashok Bhushan told Datar to choose between two options - either to await the decision by the Constitution Bench or take a chance before the Constitution Bench by appearing in the pending Naz Foundation case. Datar chose the latter option following which the apex court referred the petition to Chief Justice of India for appropriate orders.

This is the third round of litigation on the issue of homosexuality in the SC. The issue had hit headlines after the Delhi High Court in 2009 held Section 377 to be unconstitutional giving the lGBT community freedom to exercise their sexual orientation without fear of prosecution. This decision was stayed by the apex court in 2013 thus restoring the criminal sting attached to homosexual acts. The review petitions were also dismissed by apex court but after lapse of considerable time, the SC had a rethink in February this year by deciding to entertain the curative petition filed by Naz Foundation and other lGBT sympathizers in open court. It sent the matter to a five-judge Constitution Bench which is yet to hear the matter.