Vikram undertook a thorough and incisive review of the Delhi High Court decision in the Naz Foundation case in three remarkable posts on this blog. Since then, Arvind Narrain and Marcus Eldridge of the Alternative Law Forum (ALF) put together a very useful anthology of writings that help explain the decision from various perspectives.
What I wish to do in this post is to open up the phrase "against the order of nature" in section 377 for some collective introspection. And in the process, to reflect on the constitutional and societal implications of retaining such a phrase in the Indian Penal Code (IPC).
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 article 14 and 15.
For strategic reasons, Naz Foundation followed the second option above. And the judges endorsed this line of reasoning. 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.
This however begs the question: ought such activities to be construed as contravening the "order of nature" at all? Commentators have pointed out that Naz does little by way of eradicating the social stigma of homosexuality. Their concern is buttressed strongly by the implication that these activities are still "against the order of nature". Indeed, Justice Verma, who wrote a guest post for this blog may be right that the Delhi High Court judgment does not legitimise homosexuality. In fact, it continues to condemn it by labelling it an "unnatural" sexual activity.
Defining the "Natural" Order
One needs 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. See this interesting article which documents the above statistic and tellingly 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."
The current understanding of section 377 (a Victorian understanding that the court in Naz does not really overrule) is that anything barring "procreative sex" is against the order of nature.
Under this logic, using a condom would be against the order of nature. And fellatio. Perhaps one might even suggest that barring the "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."
Further, our Khajuraho temples abound with all sorts of "unnatural" sculptures likely to bring many a blush to the face of the prim and prudish.
Isn't the usage of "natural" in the context of private sexual preferences inherently vague and arbitrary? Wouldn't this be similar to asking: is it natural to bathe in the morning? Or at night? To bathe everyday? Or once a month? In any case, does the state have any business regulating such activities in the private sphere?
Article 14 Violation?
From a constitutional perspective, wouldn't the phrase "order of nature" in section 377 be indeterminate, vague and arbitrary and therefore militate against the spirit of Article 14? One may of course argue that the threshold for establishing "arbitrariness" for the purpose of Article 14 is a very high one and may not be easily satisfied. Or even go to the extent of questioning (as Seervai does) that Bhagwati J's separate doctrine of arbitrariness "hangs in the air" and has no place within Article 14.
However, even assuming this to be the case, a problematic "natural vs unnatural" distinction is likely to flunk the traditional Art 14 test of reasonable classification. Firstly, terms such as "natural" and "unnatural" are difficult to define in the context of sexual preferences, and may therefore be devoid of any "intelligible differentia". Secondly, the alleged differentia appears to have no reasonable nexus to the object sought to be achieved by the legislation. To reiterate a point made earlier, the state has no business regulating private sexual preferences between consenting adults.
Even if a large part of society balks at homosexuality, that by itself, is not sufficient reason to criminalise it. Consider the act of "lying". Though morally repugnant, one would balk at the idea of sending someone to jail for this (barring in limited cases such as perjury).
Unfortunately, striking down the entirety of section 377 owing to the indeterminacy of "order of nature" would decriminalise problematic sexual activities such as paedophilia. 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, than decapitating it by stripping it of its "unnatural" essence.
Law Commission Recommendations
But that 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). After all, it is but logical to assume that the criminalisation of paedophilia does not need to hinge on its problematic labelling 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". 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?
In any case, till the law commission report is implemented, Indian homosexuals will have to contend with living "unnatural" lives. Not a bad place to be in, given that morally superior "monogamists" have also been accused of breaching a similar "natural order".