• 3 Abhyudaya & Prithwijit

SECTION 377 AND THE ‘ORDER OF NATURE’:
NURTURING ‘INDETERMINACY’IN THE LAW?
Shamnad Basheer, Sroyon Mukherjee and Karthy Nair*
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’.
* Shamnad Basheer is the Ministry of HRD Professor of IP Law at W.B. National University
of Juridical Sciences, Kolkata. Sroyon Mukherjee graduated from W.B. National University
of Juridical Sciences, Kolkata in 2009 and will soon be joining Clifford Chance. Karthy
Nair is a 3rd year student at W.B. National University of Juridical Sciences, Kolkata.
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434 NUJS LAW REVIEW 2 NUJS L. Rev. 433 (2009)
I. INTRODUCTION
Elephants do it, penguins do it, even butterflies do it. Ancient Greeks
practised it freely, as did ancient Indians. Current estimates of the occurrence of
exclusive homosexuality range from one to twenty percent of the population.1 Yet,
in many societies down the ages, homosexual behaviour has had to suffer the
epithet ‘unnatural’. While some societies accepted homosexual relations, others
saw it as a sin, tried to repress it through law enforcement and judicial mechanisms,
and even proscribed it under penalty of death.
The Byzantine Emperor Justinian carried homophobia to the extent of
pronouncing that the sin of sodomy was responsible for earthquakes.2 The
judgment of the Delhi High Court in Naz Foundation v. Government of NCT3
(hereinafter “Naz Foundation”) may not have caused actual tremors in the earth’s
crust, but metaphorically, its effect on Indian society and popular consciousness
could well be described as seismic. The judgment sparked off celebrations and
protests, ecstasy and indignation, in almost equal measure. What it also did was
launch a million conversations in schools and colleges, households and workplaces,
chai shops and gentlemen’s clubs – a national conversation about the morality
and acceptability of homosexual behaviour.
In essence, this judgement read down Section 377 of the Indian Penal
Code (hereinafter “IPC”), insofar it criminalises consensual sexual acts of adults
in private, on the ground that such part criminalisation violates Articles 21, 14 and
15 of the Constitution. Although the Court decriminalised homosexuality for the
first time, its ruling does not necessarily stamp homosexuality with social legitimacy.
Far from it, as the judgment reaffirms the problematic legal labelling of homosexuality
as an act ‘against the order of nature’.
1
R.L. Sell, J.A. Wells & D. Wypij, The Prevalence of Homosexual Behavior and Attraction
in the United States, the United Kingdom and France: Results of National Population-
Based Samples, 24 (3) A RCH S EX B EHAV 235–48 (1995); G ILBERT H. H ERDT, S AME S EX ,
DIFFERENT CULTURES: EXPLORING GAY AND LESBIAN LIVES (1998); EDWARD O. LAUMANN, THE SOCIAL
ORGANIZATION OF SEXUALITY : SEXUAL PRACTICES IN THE UNITED S TATES (2000). The National Aids
Control Organization estimates that India is home to 2.5 million MSMs (men who have
sex with men). See Legalise Homosexuality: Ramadoss, T IMES OF I NDIA , 9 August 2008
available at http://timesofindia.indiatimes.com/India/Legalise-homosexuality-Ramadoss/
articleshow/3342815.cms (Last visited on October 18, 2009). Mr. Shyam Divan submitted
in the course of proceedings before the Delhi High Court in the matter of Naz Foundation
v. Union of India, 160 (2009) DLT 277, that the estimated figure of the number of
homosexuals was around 5-7 percent of any given population. See Edited transcripts of
day to day proceedings, Day 3 in THE RIGHT THAT DARES TO SPEAK ITS NAME 62 (2009).
2
Novella 77; Civil Law 16 [7] :288, quoted in LOUIS CROMPTON, HOMOSEXUALITY AND CIVILIZATION
146 (2003).
3
(2009) 160 DLT 277; W.P. (C) No. 7455/ 2001 of 2009 (Delhi HC).
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 SECTION 377 AND THE ‘ORDER OF NATURE’ 435
The principal obstacle now confronting activists representing the
interests of LGBT communities, is tackling this problematic legal labelling. While
there may not be many Indians who subscribe to the extreme views propounded
by Emperor Justinian, it is not uncommon in Indian society for homosexuality to be
regarded as a vice, a sin, a perversion, as contrary to our culture, or at the very
least, as a disease which can be cured. Such views prevail even though many
scientists and sociologists now accept that homosexuality is not necessarily
‘unnatural’.4 All of this begs the question: what is ‘natural’ and what is ‘unnatural’?
We argue that these terms are indeterminate, at least in the context of sexual
preferences, and no sensible law should ever peg itself to such an indeterminate
phraseology. Owing to its indeterminacy and vagueness, the term ‘order of nature’
is likely to be struck down as violating the equality clause enshrined in Article 14
of the Constitution of India.
II. LEGAL OPTIONS FOR NAZ
While attempting to decriminalise same sex activities between
consenting adults, Naz Foundation had two options:
i) Argue that the term ‘order of nature’ itself is inherently vague
and arbitrary and ought to be struck down under Article 14;
ii) Argue that any criminalisation of same sex activities (in the
private sphere) violates the right to privacy and dignity under
Article 21 and is discriminatory under Articles 14 and 15.
For strategic reasons, Naz Foundation followed the second option
above. And the Delhi High Court endorsed this line of reasoning.5 The net result
of the judges’ finding is this: although same sex activities may be ‘against the
order of nature’, they cannot be penalised, since they are between consenting
adults who have the right to privacy and dignity under Article 19 and the right to
equality under Articles 14 and 15.
4
See CHUCK STEWART, HOMOSEXUALITY AND THE LAW: A DICTIONARY 40-41 (2001) (The American
Psychiatric Association (APA) initially classified homosexuality as a mental disorder in
the first edition of the Diagnostic Statistical Manual (DSM). However, research has
demonstrated that homosexuality is as adaptive and psychologically sound as heterosexuality.
A report by the National Institute of Mental Health, along with the efforts of several
respected physicians and researchers, was able to convince the board of trustees of the APA
in 1973 that homosexuality should be removed from the list of recognised disorders. A
vote by the entire membership in 1974 upheld the recommendation of the board, and
homosexuality was no longer listed as a mental disorder in the DSM. The DSM is used
worldwide as the standard benchmark of mental health practice and is also widely followed
by the Indian Psychiatric Association.) See also BRUCE BAGEMIHL, BIOLOGICAL EXUBERANCE:
ANIMAL HOMOSEXUALITY AND NATURAL DIVERSITY (1999) (which shows how homosexual behaviour
has been observed in close to 1500 animal species.)
5
Naz Foundation, supra note 3, ¶ 132.
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436 NUJS LAW REVIEW 2 NUJS L. Rev. 433 (2009)
This however begs the question: ought such activities to be construed
as contravening the ‘order of nature’ at all? Commentators have pointed out that
the Naz Foundation judgment does little by way of eradicating the social stigma
of homosexuality.6 In fact, it continues to condemn it by labelling it an ‘unnatural’
sexual activity. This is a concern because the word ‘natural’ is loaded with a
positive evaluation, much like the word ‘normal’. So, to call something ‘natural’ is
not simply to describe it, but to praise it.7 Conversely, labelling something as
unnatural amounts to denouncing it.
III. DEFINING THE ‘NATURAL’ ORDER
All of the above leads one to ask: what exactly is the ‘order of nature’?
Who defines what is ‘natural’ and what is not? Homosexuality has been
documented in almost 1500 species, who unfortunately are not blessed with rational
capabilities (and the propensity to ‘nurture’ same sex thoughts) as are found in
mankind. An interesting article in this regard notes, “No species has been found in
which homosexual behaviour has not been shown to exist, with the exception of
species that never have sex at all, such as sea urchins and aphis.”8
While interpreting Section 377, the Delhi High Court effectively
endorses prudish Victorian moral values, where anything outside of ‘procreative
sex’ is denounced as being against the order of nature. This is not surprising, as
earlier Indian case law did no better. In Khanu v. Emperor9 it was held that “the
natural object of carnal intercourse is that there should be the possibility of
conception of human beings, which in the case of coitus per os is impossible.”
Under this logic, using a condom would be against the order of nature.
And so would oral sex. 10 Perhaps one might even suggest that barring the
6
For example, Justice J.S. Verma, former Chief Justice of India and Former Chairman of the
National Human Rights Commission, has argued that “[i]t is a misreading of the Delhi High
Court judgment to contend that it approves or legalizes, much less glorify the practice of
homosexuality, practiced in privacy.” See http://lawandotherthings. blogspot.com/2009/07/
justice-jsvermas-comment-on-naz.html (Last visited on October 18, 2009).
7
See http://fallacyfiles.org/adnature.html (Last visited on October 14, 2009).
8
1,500 Animal Species Practice Homosexuality available at http://www.news-medical.net/
news/2006/10/23/20718.aspx (Last visited on October 18, 2009). See also BRUCE BAGEMIHL,
BIOLOGICAL EXUBERANCE: ANIMAL HOMOSEXUALITY AND NATURAL DIVERSITY (1999), who details
homosexual activity among over 470 animal species which include male orang-utans who
practice fellatio and lesbian gulls who share nests.
9
AIR 1925 Sind 286, cited with approval in Calvin Francis v. State of Orissa, 1992 (2) Crimes
455.
10
See Lohana Vasantlal Devchand v. The State, AIR 1968 Guj 252, where it was held that the
orifice of mouth is not, according to nature, meant for sexual intercourse. See also Brother
John Antony v. The State, 1992 Cri LJ 1352 (Mad), where anal sex was held to be against
the order of nature. However, it must be noted that in spite of these decisions, there are in
fact no cases where Section 377 has been enforced against people of opposite sexes for
having consensual oral or anal sex. In fact, in Lohana Vasantlal Devchand, it was held that
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 SECTION 377 AND THE ‘ORDER OF NATURE’ 437
‘missionary’ position, all other positions of copulation are against the ‘order of
nature’. Incidentally, the Kamasutra describes more than 50 different ways of
lovemaking and notes: “If variety is sought in all the arts and amusements, such as
archery and others, how much more should it be sought after in the art of love.”11
Is not the usage of ‘natural’ in the context of private sexual preferences
inherently vague and arbitrary? Would this not be similar to asking: is it natural to
bathe in the morning? Or at night? To bathe everyday? Or once a month? And
more importantly, does the state have any business regulating such activities in
the private sphere?
We contend that that the phrases ‘unnatural’ offences or ‘against the
order of nature’ are incapable of any objective definition. As Leiser12 has pointed
out, an assertion that something is unnatural can mean one of at least four things.
1. It does not conform to the descriptive laws of nature
The laws of nature, in this context, are the laws which describe the way
in which physical substances actually behave. Boyle’s law of gases and Newton’s
laws of motion are examples of laws of this sort. In the case of descriptive laws, it
is obviously absurd to state that such a law is violated. This is because a law of
nature, in this sense, is formulated or rather “discovered” from empirical observation
of physical occurrences; it is not the physical occurrence that obeys such a law.
2. It is a product of human artifice
An object or a phenomenon can be called unnatural if it is a product of
human artifice. An object that would not exist or an event that would not occur,
save with human intervention, would thus be unnatural. A toothbrush in this case
would be as unnatural as a contraceptive. In short, unnatural under this
interpretation would include the sum total of all of human endeavour.
3. It is not common or normal
An unnatural characteristic in this sense means that the characteristic
is statistically rare and not present in the majority. Having six fingers on one hand
or an exceptional facility for mental arithmetic could be called unnatural in this
sense, since such characteristics are not observed in the majority of human beings.
oral sex among opposite parties may be considered as a step towards building the sexual
urge for coitus, a ground not available for such activity between same sex parties wherein
oral sex replaces the desire for sexual intercourse and thus is unnatural.
11
VATSAYANA, KAMASUTRA 71 (Sir Richard Burton & F.F. Arbuthnot, trans.: 1984).
12
See Burton Leiser, Homosexuality and the Unnaturalness Argument in SEX, MORALITY AND
THE LAW 44 (Gruen & Panichas eds., 1996).
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438 NUJS LAW REVIEW 2 NUJS L. Rev. 433 (2009)
4. It is being used in a manner contrary to its principal purpose or
function
This argument flows from the premise that every instrument or organ
of the body has a particular function to perform, and therefore, using such an
organ for a purpose inconsistent with its principal function is unnatural. As per
this meaning, a man who walks on his hands to entertain his friends is using his
hands in an unnatural manner. It would be difficult or even impossible to determine
the ‘proper’ or ‘principal’ function of an organ. For example a man may use his legs
for walking, climbing, kicking a football, standing on stilts or pressing on the
accelerator of a car. What is to determine that a particular use of it is ‘unnatural’?
Thus we see that there are at least four different ways in which the
words ‘unnatural’ or ‘against the order of nature’ may be interpreted. One of the
besetting flaws of Section 377, therefore, is that the operative phrases have multiple
and indeterminate meanings.
IV. ARTICLE 14 VIOLATION
From a constitutional perspective, one might argue that the phrase
‘order of nature’ in Section 377 is indeterminate, vague and arbitrary and therefore
militates against the spirit of Article 14. However, the threshold for establishing
‘vagueness’ or ‘arbitrariness’ for the purpose of Article 14 is a very high one and
may not be easily satisfied. Further, some commentators are of the view that Justice
Bhagwati’s separate doctrine of arbitrariness ‘hangs in the air’ and has no place
within Article 14.13 However, even assuming this to be the case, a problematic
‘natural versus unnatural’ distinction is likely to flunk the traditional Article 14 test
of reasonable classification, as elaborated upon in the section below:
A. THE ‘VOID FOR VAGUENESS’ DOCTRINE
According to the principle ut res magis valeat quam pereat (that the
thing may have effect rather than fail), courts in India are required to strongly lean
against any construction which tends to reduce a statute to a futility. If, however,
a statute is absolutely vague and its language wholly intractable and absolutely
meaningless, it can be declared void for vagueness.14 In particular, a statute may
be struck down as unconstitutional if it is so vague that a man of common
intelligence is unable to determine whether or not he is committing the offence.15
13
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 275 (3rd ed., Vol. I) (1983).
14
Tinsukhia Electric Supply Co. v. State of Assam, AIR 1990 SC 123 : (1989) 3 SCC 709.
15
Mohinder Singh Sawhney v. State of Punjab, AIR 1968 P&H 391; Kartar Singh v. State of
Punjab, 1994(3) SCC 569. See also D. D. BASU, CONSTITUTION OF INDIA 70 (4 th ed., Vol. II).
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 SECTION 377 AND THE ‘ORDER OF NATURE’ 439
The void for vagueness doctrine, perhaps best enunciated under a
catena of US constitutional law decisions, is based on the idea that a criminal law
should be sufficiently specific to give notice as to what conduct is proscribed.16 In
the U.S., provisions akin to Section 377 have been challenged on this ground, but
opinion is divided on the issue. For example Rose v. Locke17 upheld the Tennessee
code which prohibits ‘crimes against nature’ on the ground that there was a
recognised common law meaning of the phrase. However the Court in Balthazar v.
Superior Court18 held that the Massachusetts statute prohibiting ‘unnatural and
lascivious acts’ was unconstitutionally vague, insofar as it applied to certain acts
by the petitioner. Though the US Supreme Court struck down the Texan anti-
sodomy law in Lawrence v. Texas,19 the argument of vagueness was not raised
and therefore not addressed.
Although the void for vagueness doctrine is accepted in India, and
although the phrases ‘unnatural’ offences or ‘against the order of nature’ are
indeterminate and susceptible to differing interpretations, it would still be considerably
difficult to convince an Indian court that Section 377 is vague, since the threshold is
fairly high. Several decisions stand testimony to the propensity of the Indian judiciary
to construe vague laws in a manner as to render it effective and operative.20
It also bears noting that Section 377 is, at present, the only provision
which deals with problematic sexual activities such as bestiality and paedophilia.
Any argument premised on vagueness would necessarily have to strike at the
very root of Section 377 and decriminalise the above activities as well. For this
reason, any Court is likely to be hesitant in striking down the entirely of Section
377. This also explains why the petitioners in Naz Foundation did not argue that
Section 377 should be struck down as a whole, and instead limited themselves to
pleading that sexual intercourse between two consenting same sex adults in privacy
be removed from the ambit of the penal provision.21
However, notwithstanding the difficulty in establishing an Article 14
violation on the grounds of vagueness or arbitrariness, the challenge under the
traditional ‘reasonable classification’ pillar underlying Article 14 is a strong one.
B. ABSENCE OF RATIONAL NEXUS
It is well settled that, in order to pass the test of reasonable classification
required by Article 14 of the Constitution, the classification must fulfil two criteria:
16
Balthazar v. Superior Court, 573 F.2d 698 (1st Cir. 1978).
17
423 US 48 (1975).
18
Supra note 16.
19
539 US 558 (2003).
20
K. A. Abbas v. Union of India, AIR 1971 SC 481 : (1970) 2 SCC 780; Mohinder Singh
Sawhney v. State of Punjab, supra note 15.
21
Naz Foundation, supra note 3, ¶ 10.
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440 NUJS LAW REVIEW 2 NUJS L. Rev. 433 (2009)
(i) the classification must be founded on an intelligible differentia; and (ii) the
differentia must have a rational nexus to the objective sought to be achieved by
the act in question. In short, there must be a causal connection between the basis
of classification and object of the statute under consideration.22 Using the above
principles, one can question whether the classification of sexual intercourse into
‘natural’ and ‘unnatural’ forms is an intelligible one. And more importantly, whether
it bears a rational nexus to the object underlying Section 377.
The wording of Section 377 is an instance of the naturalistic fallacy
described by the British philosopher G.E. Moore.23 There is no reasonable basis
for classifying an ‘unnatural’ act (where unnatural may be understood in any of its
various meanings) as being illegal, unacceptable or wrong, and a ‘natural’ act as
legal, acceptable or good.
‘Unnatural’ cannot be held to be synonymous with wrong, evil or bad.
Being ‘unnatural’ is neither a necessary nor a sufficient condition for an act or
occurrence to be socially undesirable. It is not a necessary condition because examples
abound of things which are natural, but harmful. Diseases, droughts, natural disasters
are all instances of natural occurrences which humans have tried their best to eliminate
or avoid as they present dangers to the society.24 From the fact that something
occurs naturally, it does not necessarily follow that it is socially desirable. Similarly,
acts that are commonly perceived to be ‘unnatural’ may not necessarily deserve
legal sanction. Illustratively, consider a person who walks on his hands all the time.
Although this may be unnatural, it is certainly not deserving of legal censure.
In fact, several activities that might be seen to contravene the order of
nature (heart transplants, for example) are beneficial and desirable.25 Even if an
unnatural act is harmful to the extent that it justifies criminal sanctions being
imposed against it, the reason for proscribing such an act would be that the act is
harmful, and not that it is unnatural.
C. OBJECT OF THE CLASSIFICATION
The Union of India in Naz Foundation sought to rely on the objective
of public morality as an argument for retaining Section 377.26 Indeed, this is the
only object which might conceivably bear a rational nexus with the classification.
However, in that case, the provision is likely to fall short of meeting the intelligible
differentia requirement. As the Court noted in Naz Foundation, popular morality,
22
Budhan Choudhry v. State of Bihar, AIR 1955 SC 191.
23
G.E. MOORE, PRINCIPIA ETHICA, § 10 ¶ 1 (1903).
24
Edmund Standing, Against Nature: Why Nature Should Have No Say on Human Sexuality,
available at http://www.butterfliesandwheels.com/articleprint.php?num=111 (Last visited
on September 19, 2009).
25
See TONY HOPE, MEDICAL ETHICS: A VERY SHORT INTRODUCTION 69 (2003).
26
Naz Foundation, supra note 3, ¶ 13.
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 SECTION 377 AND THE ‘ORDER OF NATURE’ 441
as opposed to constitutional morality, “is based on shifting and subjective notions
of right and wrong.”27 For this precise reason, it is impossible to assign determinate
meanings to the phrases ‘unnatural’ and ‘against the order of nature’ on the ground
of morality. From one perspective, only the missionary position might be ‘natural’.28
On the other hand, it has been suggested that even paedophilia, which has patently
harmful effects, is in fact a natural urge or orientation.29 These instances illustrate
the difficulty of drawing a dividing line between ‘natural’ and ‘unnatural’ sexual
acts, thereby undermining the intelligibility of the classification.
Furthermore, the objective of public morality may be assailed by a
second line of argument: the rationality of the object itself may be questioned. In
considering reasonableness from the point of view of Article 14, the court has to
consider not just intelligible differentia, but also the objective for such classification.
If the objective be illogical, unfair and unjust, the classification will necessarily
have to be held as unreasonable.30 Article 14 requires that State action must not be
arbitrary but must be based on some rational and relevant principle which is
non-discriminatory: it must not be guided by any extraneous or irrelevant
considerations, because that would be denial of equality.31
Indeed, the legislative rationale for criminalising ‘carnal intercourse
against the order of nature’ was the very antithesis of rationality – it was motivated
by revulsion against what the framers regarded (and many continue to regard) as
unnatural, sinful or disgusting. The Court in Naz Foundation recognised that
Section 377 ‘was based on a conception of sexual morality specific to Victorian era
drawing on notions of carnality and sinfulness’. The Court explicitly held:
“Moral indignation, howsoever strong, is not a valid basis for
overriding individual’s fundamental rights of dignity and privacy.
In our scheme of things, constitutional morality must outweigh the
argument of public morality, even if it be the majoritarian view.”32
This in itself indicates that the Court endorsed the view that ‘unnatural
acts’ by themselves are not ‘harmful’; rather one has to independently make out a
case for harm.
27
Id., ¶ 79. See also R. K. Garg v. Union of India, AIR 1981 SC 2138, 2162 (stating that
morality is essentially a subjective value).
28
This view was propounded by St. Thomas Aquinas. See John Barncroft, HUMAN SEXUALITY AND
ITS PROBLEMS 306 (1989).
29
Dr. Frits Bernard, The Dutch Paedophile Emancipation Movement, 1(2) PAIDIKA: JOURNAL OF
PAEDOPHILIA 35 (Autumn 1987).
30
Deepak Sibal v. Punjab University, (1989) 2 SCC 145. At the same time, it must be noted
that this was an incidental observation by the Court. Even if the objective is unreasonable
and arbitrary, it has not yet been conclusively established that the Court can strike down a
law on that ground.
31
Raman Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.
32
Naz Foundation, supra note 3, ¶ 86.
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442 NUJS LAW REVIEW 2 NUJS L. Rev. 433 (2009)
The argument of unreasonable classification was in fact raised in
Naz Foundation by the petitioners. However, that argument was different
from the one outlined above, in that the petitioners did not take issue with the
classification created by the phrases ‘unnatural’ and ‘against the order of
nature’. Instead, the petitioners argued primarily that the provision in effect
makes no distinction between acts engaged in the public sphere and acts
engaged in the private sphere, or indeed between consensual and non-
consensual acts between adults. The argument was thus targeted at the effect
of the provision rather than the wording because, as stated already, if the
section as a whole were to be struck down on the basis of its wording, there
would be a vacuum in the law.
V. LAW COMMISSION RECOMMENDATIONS
As mentioned earlier, striking down Section 377 in its entirety owing to
the indeterminacy of ‘order of nature’ would decriminalise problematic sexual
activities such as paedophilia and bestiality. And this fear may have promoted the
Naz Foundation lawyers to adopt the strategy that they did before judges who
were far happier reading down Section 377, rather than decapitating it by stripping
it of its ‘unnatural’ essence.
Unfortunately, the Court’s decision still leaves us with the
condemnation of homosexuality as breaching the ‘order of nature’. Perhaps
the optimal solution is to do what the Law Commission recommends – to
abolish a vague and indeterminate Section 377 and to penalise paedophilia
and other problematic sexual activities through a separate provision (Section
376E).33 After all, it is but logical to assume that the criminalisation of
paedophilia does not need to hinge on its problematic labeling as an
‘unnatural’ sexual activity.
Interestingly, while the Law Commission carefully details out various
sexual activities that ought to be penalised under the new Section 376E, it leaves
out ‘bestiality’, curiously noting that “we may leave such persons to their just
deserts”.34 What exactly are these ‘just deserts’? Some karmic consequence that
one committing such a heinous act may be reborn an animal and subjected to the
same treatment?
VI. CONCLUSION
In deploying vague phrases such as ‘unnatural offences’ and ‘against
the order nature’, Section 377 is constitutionally flawed. Apart from the
indeterminacy of the expression ‘unnatural’ in a context such as sexual preferences,
33
LAW C OMMISSION OF INDIA , 172 nd Report, Review of Rape Laws (2000), ¶ 3.6, available at
http://lawcommissionofindia.nic.in/rapelaws.htm (Last visited on September 28, 2009).
34
Id., ¶ 3.6.
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 SECTION 377 AND THE ‘ORDER OF NATURE’ 443
there is no connection between the objective that is sought to be achieved
(presumably preventing harmful sexual activities) and the classification made
between natural versus unnatural sex.
As mentioned above, if the Court in Naz Foundation struck down the
entire section, there would have been a lacuna in the law, and so the court did what
was strategically best under the circumstances. However, the fact that the law
continues to label homosexuality and other non-harmful sexual preferences as
‘unnatural’ is problematic. The optimal solution would be, as the Law Commission
recommends, for the Parliament to scrap Section 377 in its entirety and instead
introduce other provisions that address specific categories of problematic non-
consensual sexual activities. Till then, Indian homosexuals will have to contend
with living ‘unnatural’ lives. Not a bad place to be in, given that righteous
‘monogamists’ have also been accused of breaching a similar ‘natural order’.35
35
Monogamy Appears to be Unnatural in the Natural World, available at http://news.bio-
medicine.org/biology-news-2/Monogamy-appears-to-be-unnatural-in-the-natural-world-
9953-1/ (Last visited on October 18, 2009).
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