During the previous hearing on Monday, a five-judge Constitutional bench had refused to adjourn the hearing after the Centre sought more time to file its reply.
The Supreme Court on Wednesday will continue hearing a batch of petitions against Section 377 of the Indian Penal Code (IPC), which criminalises homosexual activities.
During the previous hearing on Monday, a five-judge Constitutional bench had refused to adjourn the hearing after the Centre sought more time to file its reply.
The Supreme Court on Monday declined to wade into the issue of marriage in the LGBT groups or inheritance in their live-in relationships, as it began hearing a clutch of petitions challenging a 158-year-old colonial-era law that criminalises gay sex.
During the course of day-long arguments in a packed courtroom, the apex court also observed that colonial laws like section 377 of the Indian Penal Code(IPC), which criminalises consensual gay sex, will have to pass the rigours of the Constitution.
At the outset, the court said it would only deal with the question of validity of section 377 that bans homosexuality after it was submitted by a petitioner that it should not restrict the hearing to just this IPC provision. A five-judge constitution bench headed by Chief Justice Dipak Misra said it will examine the correctness of its 2013 verdict setting aside the Delhi High Court judgement decriminalising gay sex under section 377.
Opening his arguments, former Attorney General and senior advocate Mukul Rohatgi, appearing for a petitioner and dancer Navtej Jauhar, said he wanted a "declaration" from the apex court that the rights of those who formed sexual minority are protected under Article 21 (right to life and liberty) and the first issue would be to test the correctness of the 2013 judgement. He said "pre-constitutional law like section 377" will have to go as it does not conform to the Constitution. "What is the 'order of nature'? Was it the order of nature in 1860? What is the order of nature that can change with the passage of time. Laws made 50 years ago can become invalid over time," he submitted.
The Centre requested the court to adjourn the hearing and sought four weeks to file its reply to the petitions.
The bench, led by Chief Justice of India Dipak Misra, however, refused and listed it for today.
Earlier in 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by a Supreme-Court bench.
Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc. "Those are individual issues we cannot pre-judge now," said the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, while outlining the broad issues which would be open for arguments.
(With PTI and ANI inputs)
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