A wife should be like Goddess “Sita”, who should follow her husband wherever he goes, and a son should be like Lord “Ram” who respects, serves and worships his parents, (asserted by Chhattisgarh and Bombay High Courts) when courts make such morally and culturally loaded remarks, it becomes very important to re examine the principles of criminalization on the fabric of morality. In this regard Hart and Devlin debate deserves special attention.

Hart Devlin debate is centered upon a controversial issue of morality and law i.e. whether morality should be enforced by law or not. This controversy had sparked in the year 1957 after the Wolfenden Report had come. In this report it was proposed that homosexuality and prostitution should be decriminalized from the English Law.1 British Judge Patrick Arthur Devlin had asserted that a recognized public morality is fundamental for the existence of a society. He believed that even if no real harm is caused by the immoral act of an individual still by his very act he weakens the moral bond through which the society remains cemented (known as Legal Moralism). To which British legal philosopher H.L.A. Hart had argued that in a pluralistic society there could be multiple views on the standards of morality. What is moral for one may be immoral for other and therefore he advocated for the idea of minimum of morality for peacefully living in a society. Devlin had also rejected the John Stuart Mill’s Harm Principle, as according to Devlin’s Legal Moralism, it is irrelevant whether harm is caused or not to anyone. To enforce morality, according to Devlin coercion should be used. But Hart said that this would have undesirable impact on the development of a society resulting into loss of opportunities to challenge the incorrect view of majority. One cannot deny the fact that the sheer abhorrence and disgust on moral and religious grounds in our country, has resulted into many regressive policies of criminalization. Like the criminalization of begging, prostitution, homosexuality, abortion. Due to these laws the disadvantaged groups suffer the most.

In the Wolfenden Report, it was argued that consensual homosexual act between the adults in private doesn’t come under the ambit of criminal law as it is neither offensive nor injurious to others. It falls only under the private immorality and that law should give importance to freedom of an individual.3 A similar contention could be seen in the case of Naz Foundation v. Government of NCT of Delhi4, by the Naz foundation that the state has no business to interfere in the private life of a homosexual. But then if we apply this principle on acts such as abortion, attempt to suicide, euthanasia, incest between brother and sister all of these could be justified as they all are committed in private. Though, some of these could be reformed but not all. Legislature when makes laws and judges when review them, both are often guided by the values recognized by the society. Value keeps changing in a society with the progress and so changes the law. Morality and law are the two agencies for social control.5 And therefore it won’t be possible to remove morality absolutely from the law. We cannot deny the fact that Indian Penal Code was also influenced by the social and moral ethos that was prevailing at the time it was enacted. Crimes like buggery, carnal intercourse against nature, obscenity and a separate chapter for offences related to religion.

Now if we examine the acts such as prostitution, homosexuality, pornography or euthanasia from the lens of Hart and Devlin debate, Devlin would have supported the criminalization of such acts saying that these acts are threatening to a society and will erode it. On the other hand Hart would have been against such criminalization as it interferes with the freedom of an individual who is not causing harm to anyone. But one may argue that due to homosexuality and prostitution sexually transmitted diseases like AIDS is spreading more or that in pornography the women is oppressed or that the incidents of sexual crimes are increasing due to it or that due to the intake of drugs the burden on medical services has been increased or that the marriage of first cousins results into genetically disordered kids. One would notice that due to these claims, every private affair could actually be said to ultimately harming someone else.

And therefore a clear distinction cannot be drawn between the private acts that are harmful and the private acts that are not harmful and almost every immoral act will be criminalized when harm principle would be applied to it.

Therefore it becomes important here to talk about the Joel Feinberg’s reformulation of Harm Principle. According to which harm must have been caused by the wrongful conduct of a person which invades (harms) the interests of a person. And the person who has caused the harm without being wrong (unjustified or intentionally) should not be punished. So therefore an act should be both harmful and wrongful to be criminalized. Now if we take up the act of pornography, Devlin would consider it as a threat to moral order. It would corrupt the religious and moral values of a society and therefore the state could use the coercive power to prevent people from engaging in such activities. As discussed above that even by applying the harm principle also, criminalizing such acts could be justified. But if we apply Feinberg’s offense principle, as by watching it in a private space no wrongful harm is caused to others therefore pornography cannot be criminalized but if it is publically displayed then it could create offensive nuisance to the non consenting adults. And therefore in public areas it could be criminalized according to him. But it is sad that nowadays acts that don’t fall in these both categories are also criminalized. No objective test is conducted before criminalizing and over criminalization is being done by applying subjective tests on whims of the majority. Due to which the minorities like the homosexuals, sex workers, and beggars have to suffer. And therefore it becomes very important that some objective progressive test is applied to cater the needs of the contemporary issues.

One solution that was carved out by the Indian Supreme Court to balance between the liberty of an individual and the moral standards in a society was to check whether the act (the so called wrongful harm) of that individual falls under any of the constitutional rights or not. If yes, then it would be saved from criminalization. If no, then that act could be criminalized. By applying this test the rights enshrined in the constitution will put a restraint on government’s over criminalization especially on the basis of public morality. Like in the case of P. Rathinam v. Union of India7, in which section 309 of IPC i.e. attempt to commit suicide was decriminalized on the reasoning that right to life under article 21 of the constitution includes right to die. But two years later in the case of Gian Kaur v. state of Punjab, the court overruled its previous judgment by taking up a holistic view of the constitutional rights and holding that it is the duty of the state to protect its citizens. This shows that giving a narrow interpretation and only looking for the specific rights in the constitution would not be sufficient, rather along with the interpretation of rights, constitutional morality should also be checked to reach a correct decision.
Similarly, in the case of Yusuf Abdul Aziz v. State of Bombay9, the court had upheld the adultery by taking up the incomplete, fragmented view of the constitution saying that adultery under section 497 of IPC is a special provision favoring women under article 15(3) of the constitution. Later on, in the case of Joseph Shine v. Union of India10, this provision was struck down by imbibing the constitutional morality. The court rightly remarked that this provision affects the dignity and equality (Articles 21 and 14) of the women by reading out the norms of the constitution instead of its separate provisions. And therefore it becomes utterly important that the test of constitutional morality is applied instead of public morality to protect people from the wrath of state hegemony.

The Naz Foundation v. Govt. of NCT of Delhi, deserves our attention when we discuss constitutional morality, in this case, Delhi High Court while decriminalizing homosexuality had remarked that the rights of an individual should not be subjected to the approval of the society and that public morality should not decide the crimes of a society instead they should be decided on the constitutional morality. After this judgment in more than forty cases, constitutional morality was referred to. We can also say that the court has used critical morality instead of positive morality in this case.

In the case of, Indian Young Lawyer’s Association v. State of Kerala12, Justice D. Y. Chandrachud had rightly remarked that exclusion of women from entering the Sabrimala  Temple, is contrary to the constitutional morality and subverts the ideals of autonomy, liberty and dignity. He also said that it is a form of untouchability practiced against women which is justified on the convictions of purity and pollution.

It is true that the concept of constitutional morality is not flawless. But it is also true that in a diverse country like India where customs, religions, languages, faiths and ultimately the morals of people change with every kilometer you travel, an objective and rational test is required that could be applied on everyone equally irrespective of their social and moral obligations (except some exceptions that are provided in the constitution itself) Otherwise it would led to a situation where the government penalizes every act on its wishes. Like the recent Love Jihad laws passed in many states. And what could be better than finding the solution to this problem in the constitution itself which ensures that an individual’s right is not infringed arbitrarily.