Section 377 and the ‘Order of Nature’: Nurturing ‘Indeterminacy’ in the Law?
Shamnad Basheer, Sroyon Mukherjee & Karthy Nair
Volume 2 Issue 3 (2009)
This paper lauds the end result of the Naz Foundation case in that it decriminalises homosexuality, but questions the continuing problematic legal labelling of it as an activity that contravenes the ‘order of nature’. It argues that terms such as ‘order of nature’ in the context of sexual preferences are inherently indeterminate, vague and arbitrary and are therefore likely to contravene Article 14 of the Constitution of India. The Naz Court endorses a line of Section 377 cases that embody a prudish Victorian morality, under which only ‘procreative’ sex is seen as ‘natural’.
By this logic, even condom usage during sex would count as unnatural, an absurd result, given that India suffers a population explosion problem. In any case, it is not the place of the state to regulate such private acts that cause no palpable harm, apart from offending the conservative sensibilities of some sections of society.
This paper explores the parameters of Article 14 and argues that it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’. Further, since this problematic distinction envisaged by section 377 has no rational nexus with the object sought to be achieved by the law, it would even flunk the traditional ‘reasonable classification’ test under Article 14. The court did not adopt the more ‘natural’ line of argument above and strike down Section 377 as a whole, as it may have feared the resulting decriminalisation of problematic sexual activities such as paedophilia and bestiality. We argue that although this is a valid concern, it is best addressed by Parliamentary intervention. To this extent, we endorse certain recommendations by the Law Commission that propose the enactment of a new provision to criminalise problematic sexual acts such as paedophilia, without necessarily labelling them as ‘unnatural’.