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Section 377: A Conflict Between Legal Moralism And Legal Positivism

In India, homosexuality was criminalized and section 377 of Indian Penal Code (IPC) deals with it. Dating back to 1861, this section makes sexual activities "against the order of nature" punishable through law and includes a life sentence but the Supreme Court in its landmark judgment 'Navtej Singh Johar v. Union of India' on 6 September 2018 partially struck down section 377 of IPC, hence legalizing homosexuality in India.

This legalized the consensual gay sex in the country. This was followed by the debate between two groups who follow two different ideologies i.e. Legal Moralism and Legal Positivism. The principle of legal moralism states that the lawful legitimacy of any act is associated straight forwardly with the morality of the act as any revelation of a human direct ought to be affirmed by manmade law whereas those following the theory of legal positivism supports the decriminalizing of homosexuality. According to them there isn't any necessary relation between law and morality. According to them the intervention of law should not be justified if two homosexuals are involved in sexual intimacy in private.

Understanding the legality of Homosexuality in context of Legal Moralism v. Legal Positivism:
Lawful Moralism is the notion that the objective of law is to regulate actions in accordance with society's prevalent view of morality.[1] It additionally states behaviour that diverges from such morality should be made culpable under law. This school of thought endeavours at decriminalizing acts that are against the morality. Legal Moralists contend that morality comprises the actual structure holding the system together.

According to Lord Devlin, "�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."[2] In this regard, Devlin contends that it is the right of the society 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."[3]

On the other hand, Legal Positivism argues that law doesn't have any task to carry out in the authorization of morality. Also, this school of thought disagrees with the idea that a widespread basic morality is the premise of, and essential for, the strength of a society.

In the particular sense of homosexuality, Hart is incredibly relevant inferable from his discussion with Lord Devlin on the crossing point between law and morality. Devlin argued that law has an important role in securing the morality of the state. He believed that Homosexuality was immoral and in such manner, no differentiation should be made between private and public morality. In reacting to this line of thought, Hart claimed that invoking the fear of criminal punishment to enforce morality was erroneous and absolutely incorrect.

At this point, it is important to answer the question:
"Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law?"[4] To answer this question we look at the John Mill's theory of 'harm'. The lone reason for which force can legitimately be practiced over any individual of a civilized society against his will is to prevent harm to other people.[5]

So if a person's sexual decision or conduct doesn't bring about harm to other people, then it makes no sense regulating it by law. Curtailing an individual's sexuality to build up a typical idea of morality is, definitely, a preposterous limitation on individual autonomy, without which no individual can be called a 'moral person'. Section 377 of the IPC penalises a voluntary, consensual sexual conduct that causes no harm to a third person. Based on a Hartian and Millian comprehension of morality and law, this provision plainly has no jurisprudential basis.

Four years of decriminalization of Section 377:
The fact that law can just change the law but not the conduct of the people can be observed in the case of Indian society as well. Even after more than four years of decriminalization of Section 377, many people in the country are not willing to accept the homosexual community. The community is as yet limped by the stale outlook of individuals and the savagery against them has been rampant across India. They still face a lot of discrimination on the basis of their gender preference.

The court ruling may have allowed them to engage in sexual relations legally with their partner, however in the society, it has neglected to give them pride. The state, regardless of its political, economic, and social arrangements, has a legal obligation to advance and ensure the human rights of its people. What India calls for now is more laws that would ensure the homosexual community or possibly make space for them in the existing provisions. It is time that we embrace the truth and, as per it, amends ourselves. Homosexual people are similarly pretty much as human as hetero people and we should start to acknowledge them as they are.

Clearly, Section 377 doesn't track down any jurisprudential basis. Simply, law doesn't have the position to regulate the sexual conduct of a person, as it abuses fundamental autonomy. Regardless, a provision like Section 377, which is planned explicitly to focus on a group of people based on a distinction in sexual orientation, can't support the trial of basic morality. Reconciling two diametrically opposing legal standpoints of jurisprudence thus suggests that Section 377 was an unjustified use of force against the homosexuals and used to discriminate them because of their sexual preference.

Through the above analysis, it can also be observed that even after more than four years of declaring section 377 as unconstitutional; the homosexuals are not benefited in the manner they were required to be. They are still fighting to set a place in the society. The decision of 2018 has marked the end of a significant time period of oppression, where this law will presently don't be accessible to encourage or propagate an atmosphere conducive to human rights infringement of different sorts. Nonetheless, it is likewise evident that it will require a lot more years to eradicate the disgrace encompassing this community and to normalize their lifestyle.

  • H.L.A. Hart, Essays in Jurisprudence and Philosophy (first published 1983, Clarendon paperbacks 2012) 248.
  • Devlin Patrick Arthur Devlin, The Enforcement of Morals (first published 1965, Liberty Fund Inc 2010) 10.
  • Ibid.
  • H.L.A. Hart, Law, Liberty and Morality (Stanford University Press 1963).
  • John Stuart Mill, On Liberty (Watts & Co., London 1948).

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