The Hindustan Times reported Chief Justice Dipak Misra and two other judges said the decision on Section 377 of the Indian Penal Code was based on what it described as “the perception of majority and concept of social morality.”
“Concept of consensual sex may have more priority than a group right and may require more protection,” said the judges, according to the Hindustan Times. “A section of people or individual who exercise their choice should never live in a state of fear.”
The Delhi High Court in 2009 struck down the country’s colonial-era sodomy law. The Supreme Court’s 2013 ruling overturned it.
Indian lawmakers in late 2015 rejected a bill that would have repealed Section 377.
India is among the more than 70 countries around the world in which consensual same-sex sexual relations remain criminalized.
The Supreme Court last August issued a landmark privacy ruling that advocates said would have an impact on efforts to repeal Section 377.
A 2014 ruling recognized transgender Indians and hijras and eunuchs — those who do not identify as male or female — as a “third gender.” The Supreme Court decision also directed India’s federal government and its agencies and state officials to fight discrimination based on gender identity and include trans people in state-run programs.