Aditya Prasanna Bhattacharya

The Hartian understanding of law and morality makes a clear case for repeal. 

Credits: Bloomsbury Publishing

This is the second out of three entries in our latest series: ‘Repealing Section 377: A Reconciliation of the Hart v. Devlin debate’. 

In the specific context of homosexuality, Hart is extremely relevant owing to his debate with Lord Devlin on the intersection between law and morality. In 1957, the Wolfendon Committee Report published in England stated its position on decriminalisation of homosexuality in terms that were as direct as they were blunt: “[there] must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”.[1] In rejecting this proposition, Devlin termed it “crude and brief”,[2] and argued that law has a crucial role to play in protecting the morality of society. Homosexuality, according to him, was immoral,[3] and in this regard, no distinction must be made between private and public morality.

In responding to this line of thought, Hart asserted that using the threat of criminal sanctions, as a tool to reinforce morality was without basis and wholly inappropriate.[4] At this juncture, it is necessary to answer the question: “Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law?”[5] In fact, this is a question posed by Hart himself. To answer it, he used John Stuart Mill’s theory of ‘harm’. In his landmark essay On Liberty, Mill said: “The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others.”[6] While Hart generally disagrees with Mill’s broad claim that ‘harm to others’ is the only factor that permits legal coercion,[7] he does concur with it in the specific issue of enforcement of morality.[8]

If an individual’s sexual choice or conduct does not result in harm to others, then law has no basis in regulating it. Curtailing a person’s sexuality for the purpose of reinforcing a common notion of morality is, by all means, an unreasonable restriction individual autonomy, without which no individual can be termed a ‘moral person’.[9] Section 377 of the IPC punishes a sexual act that is voluntary, in most cases consensual,[10] and causes no harm to any third-person. Judging by a Hartian and Millian understanding of morality and law, the provision clearly has no jurisprudential basis.

Devlin’s reinvented framework has been discussed in the following post. 

[1] ¶61, Report of the Committee on Homosexual Offences and Prostitution (1957).

[2] Supra note 3, at Section 3: Legal Moralism.

[3] Sharma, supra note 6.

[4] Id.

[5] H.L.A. Hart, Law, Liberty, and Morality, 4 (1963).

[6] John Stuart Mill, On Liberty (1859).

[7] Supra note 3, at Section 3: Legal Moralism.

[8] Hart, supra note 13, at 5.

[9] Sharma, supra note 6.

[10] Child rights activists have argued for the retention of Section 377, as they feel it is an effective tool in fighting many cases of child abuse. See Geentanjali Mishra, Decriminalising Homosexuality in India, 17(34) Reproductive Health Matters, 20, 23 (2009).