The conduct of having “carnal sexual intercourse against the order of nature” in itself does not require the last resort mechanism of criminalisation.
In this post, I shall argue that according to the theories of criminalisation put forth by both Hart and Nozick, S.377 should be decriminalised. I shall begin by looking at certain basic principles of criminal law and arguments of some legal theorists which lay the foundation for the argument based on Hart and Nozick’s theories. Later, I shall analyse the arguments against decriminalisation using these theories and then, conclude.
Basic Principles of Criminalisation
The principle of individual autonomy is one of the core principles of criminal law. Joseph Raz identified three main features of autonomy: one, promotion and protection of positive freedom, two, the State must create conditions for autonomy in addition to preventing denial of it and three, there must be no infringement of a person’s autonomy unless it is necessary to protect or promote the autonomy of other people. This third feature is a minimalist principle which is adopted by Nozick for his theory.
This principle is, however, counterweighed by the principle of welfare which includes the maintenance of interests like safety and health although they might sometimes be harmonious. This implies that the State is justified in criminalising any conduct that may cause harm or create an unacceptable risk of harm to others. The question that must then be answered is what would amount to harm. There have been differing attempts at defining harm. As Mill postulated, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
The harm principle is a negative principle which primarily seeks to limit criminalisation of conduct which may be regarded as “immoral.” There have been some expansive interpretation of “harm” as well on the grounds that it is itself a morally loaded concept and must be cognizant of the moral, cultural and political interests of the system. But, the crux is that legal paternalism and moralism cannot be sufficient justification for criminalisation. As mentioned in the previous sub-section, criminal sanction emphasises the public element of this harm, where the victim is not just the affected individual but the community as a whole, and hence, the conduct must be of sufficient gravity and seriousness to be considered suitable for criminalisation.
This also implies that remote harms, that is those harms which do not follow normal causal principles and have an intervening act which results in the infliction of harm, should not attract criminal liability. Such conduct are not harmful in themselves and should not be criminalised unless they are accompanied by an intention to encourage, commit or assist a substantive offence. Else, they widen the ambit of criminalisation to a dangerous degree and do away with the crucial element of mens rea or having wrongfully committed an act.
Hart’s Theory of Criminalisation
Simply put, Hart argues that the fact that certain conduct is immoral by common standards is insufficient grounds for its criminalisation. He places greater value on the principle of legality according to which criminal offences should be defined precisely and there should be reasonable certainty as to what is criminal conduct. He does not consider the preservation of a society’s existence to be sufficient justification in itself and says that there may be societies characterised by cruelty or torture and perhaps, the disintegration of such a society would be morally superior to preservation of the same. He presumes that proper justification for legal enforcement is a principle of critical morality and says this is essential given the punishment and deterrent effect that criminalisation brings about – since both of these impede the rights of individuals of free choice that may have been of value to them.
The arguments made against the decriminalisation of S.377 are primarily that: one, the provision does not discriminate against homosexuals in particular, two, deletion of the provision will not help solve the problem of HIV AIDS, three, criminalising such sexual conduct does not have any negative impact on the personality development of the affected individuals, four, that such conduct has the propensity to cause harm by virtue of being a high risk activity and the possibility of sexual partners contracting diseases and five, it is “unnatural” and goes against “morality” and it goes against “the code of nature” which is “inviolable.”
Applying Hart’s theory, the question arises as to what is the justification for criminalising such conduct irrespective of whether it discriminates against a particular class of people or not. Once this question is asked, it sets a higher standard to be met for retention and arguments like deletion of the provision would not result in much change in the ground realities, or that they do not negatively impact something, do not meet that standard. Hence, the arguments that require further scrutiny are that (a) the conduct causes harm and (b) it is immoral. Clearly, as discussed in the previous sub-section, the morality in question here is positive morality, and as Hart says, if one accepts the critical morality principle of not criminalising something merely because it goes against positive morality, this argument too fails. The harm that is purportedly caused is a remote harm. The people indulging in such conduct do not do so with the intention of causing danger to public health. Further, this harm is brought about by the intervening factor of not having access to requisite medication and healthcare facilities due to the prevalent stigma.
Hence, it can be seen that as per the theory of criminalisation put forth by Hart, the provision should be decriminalised.
Nozick’s Theory of Criminalisation
As observed earlier, Nozick adopts the minimal state as the backdrop against which he puts forth his argument for criminalisation. As a libertarian, he agrees with the principle of individual autonomy. However, he adopts a dangerously wide interpretation of the State’s power to criminalise in the interests of welfare. Nonetheless, as it will be shown, this does not include criminalising the conduct covered within the ambit of S.377.
According to Nozick, criminalisation depends on whether the concerned act can be compensated for. He states that certain acts that can be compensated for, may induce fear despite knowledge of full compensation. Further, in many cases, people may be under fearful apprehension and not be the injured party and hence, these non-victims would not even receive compensation. So the mere knowledge that such acts are permissible causes the fear. Nozick focusses on the effects and consequences of certain conduct not being prohibited in addition to the effects and consequences of the conduct itself. In order to do away with this fear, the State can criminalise such conduct. This theory raises several issues. For instance, what is the threshold of fear that warrants criminalisation? Whose fear – the majority? Nozick himself concedes that fear is dependent on the social environment and more stressful the environment, lesser the fear due to conditioning which makes fear a poor reason for criminalisation in such cases.
Nozick refers to fear in connection to a potential harm and not fear in isolation. If one assumes it to be fear in isolation, it would lead to absurd results quite contrary to that of a minimum state with little to no autonomy. If we look at fear in conjunction with harm, here too, the argument of a remote harm is applicable. This is evidenced by the examples he uses where there is specific direct harm caused – like being humiliated, shamed, disgraced, embarrassed in addition to physical injury and pain – where rights of the concerned individual are violated. Hence, the test for criminalisation according to Nozick is whether the conduct in question would cause fear of harm. He would condone discrimination against a particular class of people as well as overlook the negative impact on personality development such criminalisation would have so long as it reduced the fear amongst the people. Nevertheless, merely finding certain conduct as offensive due to prevailing morality would not amount to fear and he does not consider morality to be a factor at all for criminalisation. Hence, even according to Nozick, the provision could be decriminalised as it does not clear the test for criminalisation and none of the other arguments against decriminalisation would even be applicable for him.
I have adopted the position of sparing criminalisation throughout the post and hence, my interpretation of the theories too is from this perspective. It is clear that according to the general principles of criminal law and the theories of Hart and Nozick, S.377 should be decriminalised. Mere reading down of the provision would also amount to over-criminalisation as there are other provisions in the IPC and other legislations to take care of conduct like non-consensual sexual intercourse or sexual intercourse with minors. The conduct of having “carnal sexual intercourse against the order of nature” in itself does not require the last resort mechanism of criminalisation.
 Joseph Raz, The Morality of Freedom, 425 (1986).
 H.L.A. Hart, Law, Liberty and Morality, 4 (1963).
 Neil MacCormick, Legal Right and Social Democracy, 23-4 (1982).
 Joel Feinberg, Harm to Self, 54 (1986).
 Robert Nozick, Anarchy, State and Utopia, 65-71.
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