ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Section 377: No Jurisprudential Basis

Section 377 of the Indian Penal Code, which criminalises homosexual relations, has no jurisprudential justification as it makes illegal a consensual, voluntary sexual act that does not harm a third party and falls within individual autonomy. The State cannot use its power to punish a particular practice on grounds of immorality only because a majority believe it to be so. This law also defines a criminal class not by virtue of its behaviour but by sexual orientation.

As the debate over the validity of Section 377 of the Indian Penal Code (IPC) – an archaic law that criminalises voluntary sexual intercourse against “the order of nature”, rages in the Delhi High Court in the Naz Foundation case, across the media and political and social arenas of the country, India seems to have finally mustered the courage to at least question this law on a constitutional and practical front. When our “secular” government falls back on religious texts to “save the moral fabric of our society”, it becomes crucial to analyse the jurisprudential foundations of this section, perhaps the one aspect that can make or break a law. Not surprisingly, once put to the test, the jurisprudential brasstacks behind this law collapse like a pack of cards.

Section 377 has been vehemently opposed by human rights activists because it criminalises consensual homosexual relationships. The most common jurisprudential justification given for criminalising homosexuality is that the State can dictate what morality is and has the power to punish acts which are immoral. The question that then arises is to what extent can morality, as espoused by the State, be a ground for criminalisation of activities? If certain behaviour is regarded as morally wrong, is this sufficient justification for the creation of a criminal offence?

The problem as to what behaviour the law should regulate has been probed into by many great thinkers. John Stuart Mill argued that the only part of an individual’s behaviour over which the society should have control is that which concerns others, but the individual must be sovereign over his own body and mind (Banerjee and Gandhi 2002). Jeremy Bentham proposed the utilitarian penal theory according to which if the apparatus of punishment does more harm than good, then the matter should be left to private ethics (Postema 2002). Opposed to these theories there developed the “harm principle” which criminalised certain acts not because they caused harm to a specific person, but because they were said to cause harm to the public, the State, public institutions and practices and the health of the entire society.

Crime and Sin Inseparable?

The basic argument in favour of laws to regulate moral behaviour is that the State has an interest in preserving the traditional morals of people. Our society has always endeavoured to regulate sexual behaviour. The law must be concerned with some moral values and cannot allow people to abuse their rights, liberty and freedom in any manner whatsoever. It has been argued by many that if certain behaviour evokes feelings of intolerance and indignation in ordinary members of the society that is sufficient indication that the behaviour threatens the common morality and is therefore a proper object of criminal law (Ashworth 1999).

However, today the application of criminal law in the area of sexual behaviour, has been challenged throughout the world both in theory and in practice. This law versus morality debate is best evidenced from the argument that ensued between two great jurists of our time: H L A Hart and Patrick Devlin (Samuelson 1998). Devlin (better known in legal circles as Lord Devlin), one of the foremost judges and jurists of England, attacked the Wolfendon Committee report published in England in 1957 which stated that homosexuality should be decriminalised. Devlin believed that a society is kept together by the bonds of a common morality and held homosexuality to be immoral. On the basis of this assumption, he argued that a society has the right to pass judgment on all matters of morality as also the right to use the law to enforce those judgments. He believed that society disintegrated when no common morality was observed and therefore maintained that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions. Immorality for the purposes of the law was what every “right headed person” presumed to consider immoral. Devlin thus concluded that society may suppress vice just as it suppresses subversive activities: crime and sin cannot be separated.

In response to these arguments H L A Hart, professor of jurisprudence at Oxford University (perhaps the most influential legal philosopher of our times), asserted that it was at best a crude and uncritical expedient on Devlin’s part to turn popular morality into criminal law. He argued that the use of the criminal law to enforce popular morality, in particular sexual morality, was inappropriate. Hart attacked a society whose morality is based on retrograde principles and he rejected Devlin’s hypothesis that a universally shared morality is a pre-requisite for a society’s existence. Such an assumption would warrant the extravagant claim that all of a society’s morality was “a single seamless web, so that those who deviate from any part are likely or perhaps bound to deviate from the whole (ibid).” This would then warrant the absurd conclusion that legal enforcement is a compulsory requirement for moral preservation. Hart thus concluded that when the values of liberty, safety, and protection are secured, they permitted a society to accommodate individual divergences from a dominant morality and in fact enabled it to profit from such divergences by making suitable adjustments for change.

This jurisprudential wrestle had a direct impact on the society as it manifested itself in the debate the US Supreme Court engaged in on the question of anti-sodomy laws and ultimately became the rationale for changing its attitude towards anti-sodomy laws. When most states in the US had abolished sodomy laws, the US Supreme Court in 1986, adopting the ideas of Devlin, gave its decision in one of the most controversial cases regarding the interest of homosexuals: Bowers vs Hardwick.1 Considering the constitutionality of a Georgia statute prohibiting sodomy, the Supreme Court decided not to strike down the impugned law because the majority of judges said that American tradition did not accept homosexuals. The court explicitly denied homosexuals a fundamental right to choose their sexuality and any kind of private sexual conduct between consenting adults being constitutionally insulated from state proscription was held to be unsupportable because it was against the morality and the tradition of the country. Finding it necessary to drive home the “repugnance of homosexuality” the strongest Supreme Court in the world went on to refer to it as “a heinous act the very mention of which is a disgrace to human nature.” The Bowers decision was based simply upon the majority’s attitudes towards the morality of homosexuality.

It was only in 2003 that the US Supreme Court in Lawrence vs Texas,2 decided to change its ideology and sided with the views of Hart, holding the anti-sodomy law of the state of Texas to be invalid. It declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalising conventionally deviant conduct. The rights to privacy and liberty were held to give substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. It also held that the fact that the governing majority in a state had traditionally viewed a particular practice as immoral was not a sufficient reason for upholding a law prohibiting the practice. The majority view was not allowed to use the power of the State to enforce these views on the whole society through operation of the criminal law. A majoritarian morality was thus prohibited from defining the reasonable and permissible contours of the penal code.

Individual Autonomy

The jurisprudential argument of Hart and the decision in the Lawrence case ensured in the US at least, a country as bigoted against homosexuals as any other, that majoritarian morality no longer automatically trumped the liberal argument in defining the reasonable and permissible contours of a penal code. Individuals must have the capacity and sufficient free will to make meaningful choices, for without allowing independence of action to individuals, they can hardly be regarded as moral persons. Section 377 has no jurisprudential justification. The Section criminalises a consensual, voluntary sexual act, which does not harm any third party and squarely falls within the scope of
individual autonomy. By criminalising homosexuality, it is clearly and completely antithetical to any principle of individual autonomy. Furthermore, laws of the nature of Section 377 do not merelyexpress societal disapproval; they go much further by creating a criminal class. The contours of this criminal class are not defined by conduct, but by sexual orientation, a view that reeks of an antediluvian Victorian morality that can no longer be justified.

The Indian courts must also recognise that Section 377 has no jurisprudential basis and must be abolished. Similar anti-sodomy laws have been abolished by the International Covenant on Civil and Political Rights (to which India is a signatory), and in jurisdictions like Australia, South Africa, America, etc. Laws illegalising private consensual sexual activity, touch upon the most private of human conduct, sexual behaviour. They seek to control a personal relationship that must be given a formal recognition in the law, and is within the liberty of persons to choose without being punished as criminals. We must remember that as a society and as a constitutional democracy, our obligation is to the liberty and equality of all in thought and in practice, and equality can never be made to find its legitimacy at the whims of a misinformed majority and certainly not in an antiquated, baseless moral code. It is extremely difficult to justify in practice what cannot be justified in theory; but a section that has failed both the test of jurisprudential theory and failed miserably in practice has no justification whatsoever in being a part of our penal code.

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