S. 377: The Journey, Sexual Autonomy and Role of Judiciary


S.377 is an offence which punishes sexual intercourse which is against the order of nature. The phrase ‘against the order of nature’ has not been defined anywhere but as per my understanding and research it should mean a type of sexual intercourse in which there is no to negligible chances of procreation, or an intercourse which is done solely for pleasure. So, S. 377, before 2018, used to punish every intercourse which was done for pleasure and against the order of nature.

The Problem

Problems of S. 377 were:

  • 1.     That it used to punish ‘voluntary carnal intercourse against the order of nature’, that’s it. It did not at all mention about whether it was with consent or without consent. So if two adults are voluntarily having sexual intercourse in four corners of a room. They have committed an offence. Isn't this seem to be unjust, unequitable and arbitrary on the face of it?
  • 2.     That if a person contracted a sexually transmitted disease while voluntarily performing a sexual act of the nature mentioned above then s/he cannot visit a doctor and seek the treatment. Because the moment s/he will disclose the details of his/her partner to the doctor, the doctor will have to inform the police and police will arrest the person. It being a cognizable offence. Naz Foundation was one such organization which was working for control of AIDS and challenged S.377 mainly for this reason.

Journey towards the Solution

Naz Foundation Vs. Govt. of NCT of Delhi (2009 DHC)

This was the time when the K.S Puttaswamy was not there. Meaning thereby, things like sexual preference, individual autonomy and dignity, sexual autonomy, etc did not exist. The Delhi High court through Hon’ble J. Muralidhar and Hon’ble J. A.P. Shah decided in favour of Naz Foundation and declared S.377 to the extent of punishing two consenting adults having voluntary sexual intercourse in private as unconstitutional. The Delhi High court gave beautiful reasoning and also held that S.377 violates Articles 21 , 19(1)(a), 15(1) of the LGBTQ2S community. LGBTQ2S – Lesbian, Gay, Bisexual, Transgender, Queer, Two spirited.

Article 21: Right to Life and Personal Liberty – DHC held that everyone has its personal discretion to choose his partner. And everyone has full right to control one’s own private affairs. Law should not interfere in something which is not disturbing the society and is not violating the individual’s dignity and autonomy.

In recent judgment, the Delhi HC on Marital Rape held that even the private space is within the scrutiny of law, though context was different and discussion was different. Case Name: RIT Foundation Vs. Union of India ( 11.05.2022 DHC).

Article 19(1)(a): Right to Freedom of Speech and Expression. The Delhi High Court held that S. 377 comes in the way of one’s Freedom of Speech and Expression. Because every person in India has it’s sex preference. And have the right to declare the same to the world whether s/he is Straight/Bi-Sexual/Gay/Queer/Lesbian.

Article 15(1): The Delhi High Court held that the State cannot discriminate on ground of sex. And the term ‘Sex’ written in Article 15 does include sexual orientation also.


Individualistic Approach: It was held by the court that the focus of state should be upon individual’s freedom. And individual should be allowed to live in a way s/he wants. As long as it is not affecting other’s right. Moreover, every individual has the right to choose the person with whom s/he wants to have sexual intercourse with (Though with consent).

Constitutional Morality: The court also held that ultimately it is the Constitutional morality which should prevail over any kind of social or religious practice.

Despite this being a very well-reasoned judgment. It was overruled by the Supreme court in a case named Suresh Kumar Koushal Vs. Naz Foundation (2013 SC)

Suresh Kumar Koushal Vs. Naz Foundation (2013 SC)

In this court basically overruled the Naz Foundation judgment and held it to be unconstitutional. Moreover, the court held that LGBTQ community is very miniscule population. Thereafter court gave various figures and facts and observed that there has been hardly any conviction under S. 377. Court also held that Naz Foundation judgment of Delhi High Court is mainly based on foreign judgments, which are not applicable in India and have only persuasive value. The court went on to held that the judiciary should not interfere in law making and should restrict itself with interpretation of law and the making of law should be left to Legislature thereby promoting Article 50 of the Constitution (Separation of Powers).

This judgment caused a lot of unease in the society.

Navtej Singh Johar Vs. Union of India, through Ministry of Law and Justice (2018 SC)

By the time this judgment came, K.S. Puttaswamy judgment was already there. So, Navtej Singh Johar could not go against Puttaswamy judgment. In this case, the apex court reiterated the same points which were held by the Delhi High Court in the year 2009. This judgment talked about individual autonomy which is implicit in Right to Privacy (Article 21) and also include sexual autonomy. Then court also talked about Constitutional morality being over and above social/religious morality.

So, this judgment overruled the Suresh Kumar Koushal Judgment of Supreme Court and declared S. 377 unconstitutional to the extent of it punishing voluntary sexual intercourse between two consenting adults.


So this was the journey of S. 377. Though it is very important to note that S. 377 has been declared to be unconstitutional only to the extent of it punishing voluntary sexual intercourse between two consenting adults. What is important to note here is that, S. 377 has not been declared to be unconstitutional in totality. It still punishes sexual intercourse without consent or an intercourse with a minor or an intercourse in public place.  

By: Adv. Ishaan Garg

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