Transcript of proceedings before the Supreme Court on 17th August in the 377 Case

The SLP's filed by the Apostolic Churches Alliance and S.K. Tijarawala (Baba Ramdev's spokesperson) came up for hearing before a bench comprising of the Chief Justice and Justice Sathasivam.

Counsel for SK Tijarawala started off by reading the operative part of the Delhi High Court judgment which declared that section 377 of the IPC was unconstitutional insofar as it criminalised consensual sexual acts between adults in private. He argued as a result of this judgment, prostitution would be legalised as "prostitutes, who are adults can have sex for money in private". He further stated that as a result of this judgment, people from accross the country were getting married to people of the same sex.

Counsel for Voices Against 377, Mr. Shyam Divan, then said that the other SLP that had been filed by Suresh Kumar Koushal (SLP No. 15436/2009) had been listed for the 29th of September and hence that these two SLP's should also be tagged and listed with Mr. Koushal's SLP.

Counsel for Tijarawala then continued to argue that as a result of the judgment of the High Court of Delhi, prostitution would be legalised.

The Chief Justice then said that prostitution is covered by the Immoral Trafficking (Prevention) Act (ITPA).

The Counsel for the Apostolic churches then drew the Court's attention to the section 6 of the ITPA which states that if one person "detains another person with or without the other person's consent in any brothel or in any premises to have sexual intercourse with that person”  is commiting and offence punishable for upto life imprisonment. The Counsel for the Apostolic Churches then argued that the Naz Foundation judgment of the Delhi High Court had the effect of repealing section 6 of the ITPA.

The Counsel for the Apostolic Churches further argued that the judgment bound the hands of the State of Delhi without hearing the State of Delhi or its police personnel and that the Delhi High Court had violated the principles of natural justice.

In reply the Chief Justice stated that the police cannot file on their own and that they will file only through the state and that it was for the State or the Union government to defend the law.

The Counsel for the Apostolic Churches then said that the law and order being a state subject, that it was the State and not the union that should be defending the law.

Counsel for Mr. Tijarawala then stated that gay sex centres are being opened across the country.

Justice Sathasivam then observed that all the parties coming before the SC were third parties and are not people who were present before the Delhi High Court.

The Chief Justice then said that he would issue notice on the application for interim stay of the judgment and would post it for the next date of hearing, i.e. 29 Septmber 2009.