Repealing Section 377: Legal Moralism v. Legal Positivism (1/3)

Aditya Prasanna Bhattacharya

An introduction to the Jurisprudence behind Section 377


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

Dost thou think that because thou art virtuous there shall be no more cakes and ale?

~ Sir William Shakespeare, Twelfth Night, Act II, Scene III.

Indian law has always taken a fearful approach to the practice of homosexuality, as is evident from the manner in which Section 377 of the Indian Penal Code (IPC) has been misused to clamp down on suspected homosexuals. Any hopes of legal reform were dashed by the Supreme Court (SC) in its 2013 decision in Koushal v. Naz, when it deemed the homosexual community to be a minority, and upheld the constitutionality of Section 377. This decision, however, has been challenged, and the larger bench is yet to render a final decision. Meanwhile, in the landmark case of Puttaswamy v. Union of India (popularly known as the ‘Privacy judgement’) the Court effectively termed the Koushal decision unconstitutional, but in light of the pending curative petition, stopped short of overruling it.

In light of this legal scenario, it is pertinent to examine the very basis of Section 377. I will argue that Section 377 has no basis in law. To achieve this goal, two jurisprudential frameworks will be primarily employed. The first is the Hartian understanding of the limits of law, and the second is Devlin’s idea of a necessary connection between law and morality. Through the use of Hart’s idea of autonomy, and his insight into morality, Devlin’s argument will be reinvented to demonstrate that a provision curtailing sexual autonomy cannot be said to have any jurisprudential basis whatsoever.

Before the Hart v. Devlin debate is elaborated in this Series, the principles on which Hart and Devlin based their ideas must be understood. These principles can be broadly categorised under the schools of ‘Legal Moralism’ and ‘Legal Positivism’, and have been dealt with in this post.

Legal Moralism v. Legal Positivism

Legal Moralism is the belief that regulating behaviour in accordance with society’s collective understanding of morality is the function of law.[1] It also believes conduct that diverges from such morality, or is in direct defiance to it, must be made punishable under law. This school of thought has held sway over criminal law for a long time, and attempts at decriminalising acts that are against ‘collective morality’ have been met with stiff opposition.

Legal Moralists argue that morality constitutes the very fabric of society. According to Lord Devlin, who was himself a staunch believer in the necessary connection between law and morality,[2] “…society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage.”[3] It necessarily follows that any attacks levelled against this morality poses a threat to the stability of a society, and if unopposed, will lead to its eventual disintegration. Law must therefore be used to counter such attacks by penalising any actions that do not conform to moral norms. In this regard, Devlin argues that society has a right to “use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence.[4]

The school of thought that opposes Legal Moralism argues broadly that law does not have any role to play in the enforcement of morality. Further, and more importantly,  this school disagrees with the idea that a universal common morality is the basis of, and prerequisite for, the stability of a society.[5]

One of the primary battlefields for these two philosophies is criminal law’s treatment of homosexuality. Criminal Law has demonstrated a traditional tendency to punish acts that are corollaries to homosexuality, on the ground that it is opposed to morality. For instance, Section 377 of the Indian Penal Code (‘IPC’) criminalises voluntary ‘carnal intercourse against the order of nature[6] in an attempt to target homosexual acts. In fact, Lord Macaulay, who is credited with drafting the IPC, was so abhorred by homosexuality that he was opposed to having an open debate or discussion while drafting this provision: “[Section 377] relates to an odious class of offences respecting which it is desirable that as little as possible should be said…[we] are unwilling to insert anything which could give rise to public discussion on this revolting subject”.[7]

Hart’s framework has been discussed in the following post

[1] H.L.A. Hart, Social Solidarity and the Enforcement of Morality, Essays in Jurisprudence and Philosophy, 248 (1983).

[2] Section 3: Legal Moralism, The Limits of Law, Stanford Encyclopedia of Philosophy (2006), available at https://plato.stanford.edu/entries/law-limits/#lega (Last visited on 29 May, 2018).

[3] Patrick Devlin, The Enforcement of Morals, 10 (1965).

[4] Id.

[5] Animesh Sharma, Section 377: No Jurisprudential Basis, 43(46) Economic and Political Weekly, 12, 13 (2008).

[6] Section 377, Indian Penal Code, 1860.

[7] Report of the Indian Law Commission on the Penal Code, 3990-91 (1837).

2 replies »

  1. I think we first need to establish the fact without any doubt and clarity that any immoral act is also an illegal act. Perhaps we might be able to judge the issue that has been discussed in this post through Legal lenses better then. IMO the issue is a social and behavioral one and at the same time doesn’t match entirely the aggregated society attribute.

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  2. Please read “unclarity” instead of “Clarity” in my above comment