The Supreme Court also asked the Centre to come clear on its stance within two months; the Union cabinet is divided on the issue.
The Supreme Court on Monday declined to stay the Delhi High Court ruling decriminalising consensual sex among adults of the same sex. It also asked the Centre to come clear on its stance within two months; the Union cabinet is divided on the issue.
"We are not for a stay as there is no threat of any consequences. We will hear the government, what is their stand," a bench comprising chief justice KG Balakrishnan and justice P Sathasivam observed as petitioner Suresh Koshal's counsel Pravin Agarwal warned against the high court judgment's "serious consequences".
Asking the petitioner to be patient, the bench fixed September 14 as the date for hearing the matter in totality.
The Centre’s counsel, attorney-general GE Vahanvati, said the Union government will reconsider its stand after taking into account the concerns of three ministries — home, health, and law.
The Centre’s stand, Vahanvati said, is that the high court's judgment is of limited nature.
When the petitioner's lawyer wanted a word from the bench that homosexual marriages are not legitimate, the judges refused to commit till the court had arrived at the finality of the appeals.
"Cases under section 377 [of the Indian Penal Code; the high court read down this section in its ruling] are registered only with regard to paedophilia. People are being convicted, but it has nothing to do with gay marriages," the bench said.
At the next hearing, the Supreme Court will examine the affidavits to be filed by the Union government, the NGO Naz Foundation (which had initiated litigation for making homosexual relations legal), and other organisations that supported Naz.
Although Monday's hearing seemed restricted to the core issue of legalising consensual sex among adults of the same sex, home minister P Chidambaram, who is also a noted constitutional lawyer, in an interview to a TV channel last week, said the high court judgment has enlarged the scope of appeals.
The reason, he said, is because the court had declared section 377 unconstitutional (defiant of Articles 14, 15 and 21 of the Constitution).
Thus, analysts say, the Supreme Court may have to examine the constitutional guarantee of fundamental rights with respect to homosexuals.
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