The Central government told the Supreme Court on Wednesday that it would leave it to judges' wisdom to decide the constitutionality of the controversial Section 377 of the Indian Penal Code (IPC) that criminalises homosexuality.
Additional Solicitor General Tushar Mehta, however, also said in an affidavit of the Centre that the right to choose a partner should not extend to incest.
"Choice of partner should not be a sibling, something prohibited under Hindu law," he told a Constitution Bench led by Chief Justice Dipak Misra that began reviewing its own validation of a 157-year-old ban on gay sex in the country on Tuesday.
In 2013, the top court had cancelled, on appeals by a religious groups, a 2009 Delhi High Court judgment that had declared criminalising gay sex between consenting adults as unconstitutional. The top court had then said that it was the job of Parliament to decide on scrapping laws.
The government did not act but also said on Wednesday that it would file a separate affidavit if the court decided to examine any other related question.
The court clearly said it was not getting into marriage or other such issues. The Bench said it was not discussing some "kinky notions" of sexual orientation, but the idea was to understand the nature of a relationship and whether it could be brought under the fundamental right to life.
The court said it was not limiting itself to the LGBTQ community or sexual orientation, but was looking into the aspect of two consenting adults and whether they should not be liable for criminal action for their relationship.
Two homosexuals enjoying a walk on the Marine Drive should not be disturbed by the police and charged under Section 377, the court wants to protect the relationship, it said.
The Bench that also comprises Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra is hearing a batch of petitions challenging the top court's 2013 verdict.
Section 377 criminalises carnal intercourse against "the order of nature" with any man, woman or animal. Punishment could be life imprisonment or 10 years.
Its explanation says penetration is sufficient to constitute carnal intercourse, necessary to the offence described in the section. The provision has also been used to book men indulging in sexual child abuse and even gay rape.
The section does not categorically criminalise homosexuality, making it a grey area.
There have been complaints of police harassing consenting homosexuals, threatening to impose the 1861 law.
The top court had said in January that it would decide whether or not homosexuality would remain a crime in India, 18 months after it agreed to revisit its 2013 judgment that had criminalised gay sex.
The fresh glimmer of hope for the country's LGBT community had also come four months after the top court declared individual privacy a fundamental right.
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In 2013, the top court had cancelled, on appeals by a religious groups, a 2009 Delhi High Court judgment that had declared criminalising gay sex between consenting adults as unconstitutional. The top court had then said that it was the job of Parliament to decide on scrapping laws.
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