The Hart-Devlin debate focuses on the strongly disputable issue of whether the law should enforce morality or not. In 1957, the Wolfenden Report sparked the debate between these two theorists, who took an opposing stance on the matter. The aforementioned report stated that freedom of individuals is of utmost importance, and that ‘there must remain a realm of private morality which is, in brief and crude terms, not the law’s business’.
The Wolfenden report was influenced by Mill’s harm principle. According this principle, the law can only intervene in the actions of a person, against their will, when such action would subsequently cause harm to others. However, Lord Devlin was opposed to this idea. He argued that there will be a disintegration of Society without a common morality. He claimed that the act of homosexuality is socially immoral and should therefore, be banned from the society through enforcement of law. Moreover, he stated that the prerequisite for criminal law is protection of the society, and not just individual persons. Therefore, he believed that law must intervene in cases where individual action raises “indignation, intolerance and disgust”. However, this claim was partially rejected by Dworkin stating that such opinion should be based on moral reasons and not just embedded prejudice and aversion. However, there exists a blurry line separating the two.
On the other hand, Hart argued that the sexuality of an individual is a facet of the private sphere, where the state must not intervene and impose laws. He chose individual rights over protection of the society at large. He further stated that social morality should not be the touchstone for validating individuals’ actions.
If we look at the today’s world, such decriminalisation of homosexuality has surely not led to the disintegration of the society. In India, homosexuality has been seen as a forbidden act for years. Numerous religious, societal or moral norms guide the perspective of the population. However, society and such societal norms evolve and get diversified overtime. Moreover, Devlin believed that law must intervene in scenarios where individual action leads to “indignation, intolerance and disgust”, however, he also believed that morals in the society change overtime. Therefore, it can be safely assumed that the society has evolved in a way where homosexuality will no longer invoke feelings of “indignation, intolerance and disgust” in the society.
Furthermore, in the progressive contemporary society, morals vary owing to multiple reasons. A homogenous mindset is an unattainable concept. Therefore, the Indian courts believe in protecting the rights of the minorities against that of the majority, owing to such disparity in belief. India is a diverse and secular nation with people of various faiths living in it. Giving preference to social morality or the so called “common morality” could lead to majoritarianism. Therefore, Constitutional Morality embedded in the constitution, has been claimed to be the touchstone for validating the minorities’ actions, and not social or popular morality. Moreover, the Fundamental Rights (Protection of Individual rights) enshrined in the Constitution is a part of its basic structure, which isn’t amendable. In Navtej Singh Johar vs. Union of India[1], the court upheld that it would be improper for it to use the standards of social morality in deciding the extent of intervention of law in the private life of individuals. It stated that such intervention in the private sphere should be in adherence to the standards laid down by Right to Privacy enshrined in the Indian Constitution.
[1] Navtej Singh Johar vs. Union of India [2018] 10 SCC 1 (Supreme Court of India).
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