The Indian government has left it to the "wisdom" of the country's top court to take a call on a colonial-era law, taken from British law in the 1860s, banning gay sex in India.

Government attorney Tushar Mehta said the court should rule on the issue of consensual sexual acts between two adults.

India's Supreme Court is hearing petitions by activists challenging the law — Section 377 of the Indian Penal Code — that makes gay sex between men punishable by up to 10 years in prison.

Activists have argued that the colonial-era law undermines their constitutional rights by targeting an individual's choices, and, as such, should be scrapped.

"We leave to the wisdom of the court to deal with the validity of Section 377 so far as it relates to consensual sexual acts between two adults," the Press Trust of India news agency quoted Mehta as telling the five justices hearing the issue.

In August last year, the highest court in its right to privacy judgment said that sexual orientation was an essential attribute of privacy. The court ruled that discrimination against an individual on the basis of sexual orientation was deeply offensive to the dignity and self-worth of an individual, raising hopes of the archaic law being scrapped.

Reconsidering previous verdict

The fresh hearing that started on Tuesday takes place nearly five years after the top court in a controversial ruling overturned a lower court decision decriminalizing gay sex.

In its ruling, the Supreme Court said that parliament alone could make an amendment to the law. But in January this year, it decided that a larger panel of judges will reconsider the "correctness" of the 2013 ruling.

"We don't want a situation where two homosexuals enjoying a walk on Marine Drive [in Mumbai] should be disturbed by the police and charged under Section 377," Indian broadcaster NDTV quoted a judge on the bench as saying on Wednesday.

The government lawyer asked the court to specify that the right to choose a partner should not extend to perversions like incest, The Hindu newspaper reported. He also made it clear that if the court decided to rule on other aspects like same-sex marriage, the government would respond with a detailed affidavit, the newspaper reported.

ap/msh (AP)

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