Aditya Prasanna Bhattacharya
Hart’s understanding of ‘critical morality’leads to a more nuanced Devlinite framework, which can be used to make a case for repeal.
This is the last entry in our latest series: ‘Repealing Section 377: A Reconciliation of the Hart v. Devlin debate’.
Hart’s argument for decriminalisation of homosexuality is based on the premise that law cannot impose the majoritarian morality on a minority of individuals on the ground of maintaining stability. Devlin, on the other hand, argues that if the law does not preserve majoritarian morality, then the stability of society will be threatened. I will attempt to prove that even if Devlin’s argument is privileged over Hart’s, a valid case can be made out for the deletion of Section 377.
On a prima facie basis, Devlin’s claim is based on morality, i.e., ‘Law should punish any conduct that is immoral.’ But when seen in its entirety, the argument hinges more on societal stability than on morality. In other words, his argument can be read as: ‘Law should punish any conduct that threatens to destabilise society.’ That Devlin saw morality as the stabilising factor of society is beside the point, because not only is societal morality transient, it is also just one kind of morality. As long as it can be shown that decriminalisation of homosexuality is in line with morality per se, and does not jeopardise the safety or security of society, the premise of Devlin’s claim will remain sound. However, it is important to note that this argument must be seen with caution, as it is based on the abstraction of Devlin’s personal beliefs on homosexuality, from the logical conclusion of the Devlinite understanding of law and morality.
In this regard, it is necessary to acknowledge the distinction between critical and positive morality. The latter is understood to mean the ‘morality “actually accepted and shared by a given social group”. On the other hand, critical morality consists of the “general moral principles used in the criticism of actual social institutions including positive morality”. Using the framework of critical morality, the following question can be raised: Is using law to enforce positive morality moral in itself? Leaving aside the question of whether homosexuality is opposed to Indian positive morality, a perusal of cases under Section 377 reveals its draconian nature. Police use Section 377 not to punish the act of ‘unnatural sexual intercourse’, but homosexuality itself. This practice has manifested itself in a series of cases wherein individuals have been charged under the provision simply because they are suspected to be homosexual. The impact of this section has been the creation of a completely distinct ‘criminal class’ of individuals, who are forced to live in fear of persecution and punishment owing not to any illegal conduct, but their sexual orientation.
If the rights-discourse that is prevalent in modern Indian constitutional jurisprudence is to be used as a yardstick, laws that curtail the bodily and sexual autonomy of an individual are untenable. In fact, in its recent decision in the K.S. Puttaswamy case, the Supreme Court stated that ‘sexual orientation’ is at the core of the right to privacy’, and derided the Koushal decision for being ‘flawed’, ‘misplaced’, and lacking ‘valid constitutional basis’. Significantly, the Court held: ‘The purpose of elevating certain rights to the level of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular…Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs, or way of life does not accord with the mainstream.’ From a plain reading of the decision, it is clear that Koushal should stand overruled. However, the Court observed that a challenge to Koushal was already pending before a larger bench, and it chose to defer a decision on the constitutionality of Koushal to that bench.
If fundamental rights, especially the right to privacy, can be termed as part of ‘the general moral principles used in the criticism of actual social institutions’, i.e., critical morality, then clearly, Section 377 is itself immoral, insofar as it violates an individual’s sexual autonomy. Using an abstracted version of Devlin’s idea, it can thus be argued that it is law’s duty to do away with Section 377, in order to uphold (critical) morality. This understanding is also in line with the caveat mentioned by the Supreme Court in the otherwise infamous Koushal v. Naz decision: “…the desired legislature shall be free to consider the desirability and propriety of deleting Section 377…”.
Finally, addressing the question of societal stability, it must be acknowledged that moral upheaval (or moral transformation, for that matter) does not necessarily have a destabilising effect on society. For instance, the disintegration of the Apartheid system, which was considered ‘moral’ by a large majority of South Africans, did not lead to the disintegration of South African society as a whole. In fact, the ejection of apartheid for being critically immoral, even though it was not necessarily positively immoral, led to renewed stability in South African society. It is reasonable to argue that repealing Section 377 will not result in nearly as much societal backlash as the disintegration of apartheid. Thus, if critical morality is read into Devlin’s theory, and the abstract notion of societal stability is deconstructed, it will be seen that Section 377 fails the test of sustainability.
Clearly, Section 377 finds jurisprudential basis neither in Hart’s theory nor in Devlin’s. Clearly, law does not have the authority to regulate the sexual conduct of an individual, as it violates basic autonomy. As per Justice Kennedy, “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”In any case, a provision like Section 377, which is designed specifically to target a group of persons based on a difference in sexual orientation, cannot sustain the test of critical morality. Reconciling two radically opposed theories of jurisprudence thus indicates that Section 377, as it stands, must be repealed with immediate effect.
 Lawrence v. Texas, 539 US 558 (2003).
 Hart, supra note 13, at 20.
 Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, Economic and Political Weekly, 4815, 4820 (2006).
 Justice K.S. Puttaswamy v. Union of India, WP (Civil) no. 494 of 2012.
 Suresh Kumar Koushal v. NAZ Foundation, Civil Appeal No. 10972 of 2013.