The ‘Order Of Nature’: Discourse On Judgments Relating To Section 377

Abstract

Constitutional laws and court judgments, like any film, novel or poetry, are products of the cultural industry.  They are influenced by, and in turn, influence culture and society. Therefore, like any other cultural product, laws and legal judgments should also be treated as texts, open to critical examination or diagnosis. This paper attempts to present a discourse, primarily on the three most significant court judgments relating to homosexuality (or, non-heterosexual orientations) in India. While the Delhi High Court had, in 2009 itself, decriminalized homosexuality, it was recriminalized by the Supreme Court of India in 2013. It was only in 2018 that a five-judge bench of the apex court, comprising of the then CJI himself, finally scrapped Section 377 in so far as it criminalizes homosexuality. The paper seeks to present ideas and arguments, both for and against homosexuality. While most of the arguments in favour of Section 377 rely on Indian society’s moral code of conduct and the unnaturalness and abnormality of homosexuality, the arguments against the said law aim to challenge the very notions of ‘normal’ and ‘natural.’ The arguments made by petitioners, such as Navtej Singh Johar and Naz Foundation, destabilize the status quo and challenge the mainstreaming of ideology. This paper raises some important questions- What is natural and what is normal? Which one of the two is to be preferred? Is homosexuality unnatural/abnormal, or is it natural but not normalized? What mechanisms operate in the normalizing of certain attitudes and behaviours? When does the normal become the natural and the deviant, the unnatural? While trying to find answers to these questions, the paper also strives to study the complex relationship that exists between the notions of good and evil and the notions of natural and normal.