Addl Solicitor General Tushar Mehta told the court that if it meant to touch on other issues like same sex marriage, then the Centre will file another detailed affidavit.
During the pendency of the curative petitions, the plea was made that an open court hearing should be granted and after the apex court agreed to it, several fresh writ petitions were filed seeking to decriminalise of Section 377.
ASG Mehta said that if the right to chose sexual partner is declared a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing to marriages.
At a time when countries all over the world were passing progressive laws that upheld the rights of the members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, the Supreme Court in its 2013 judgement quashed the aspirations of many who have been through hell.
Petitioners Anwesh Pokkuluri, Romel Barel and Krishna Reddy M outside the Supreme Court on Tuesday. The determination of order of nature is not a constant phenomenon.
The assurance to the Centre came after additional solicitor-general Tushar Mehta objected to a suggestion from Justice D.Y. Chandrachud, another judge on the bench headed by the CJI.
"We don't want a situation where two homosexuals enjoying a walk on Marine Drive (a Mumbai boulevard) should be disturbed by the police and charged under Section 377", Justice J. Chandrachud, who is a part of the bench hearing the matter, was quoted as saying by the channel.
Chief Justice Misra said: "We will decide whether consensual sex between two consenting adults is a crime or not". "Whether a pre-constitutional law not framed by our Parliament and which does not recognise the needs of our people should remain in existence", asked Rohatgi.
They have also argued that right to sexuality and the right to choice of a sexual partner are fundamental rights protected under Article 21 of the Constitution and have questioned whether section 377 is unconstitutional and violative of the Constitution and hence be struck down.
After this was challenged in a review, the matter was referred to a Constitution Bench of the Supreme Court. Counsel for the petitioners will continue with their submissions today.
Section 377 criminalises the very existence of LGBT persons by criminalising their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender.
In 2013, the supreme court sent out shock waves by reversing the high court's judgment, prompting "Global Day of Rage" demonstrations in 30 cities worldwide. "The law recognizes petitioners only as criminals and reduces their love to a crime", states the petition. The court will likely resume the hearing on Wednesday.