LAWS AGAINST HOMOSEXUALITY AND SUICIDE: LEGAL AND MORAL ASPECTS

AMIKAR PARWAR

Abstract: Law and morality is the battlefield of mans conscience. Question of morality arises with law in the cases relating to sex, cheating and with the questions of birth and death. In the context of law and morality debate in cases of homosexuality and suicide, there are three prevalent theories. J.S. Mill, stood with prevention of harm to others principle, Lord Devlin relied on the principles of enforcement of morality whereas HLA Harts approach was that of protection of only the universal values along with harm to others theory. Lord Devlin, observed that moral principles are accepted as the basis of criminal law and the breach of them is an offence against society as a whole. If order and decency is eliminated from criminal law, fundamental principle would be overturned and will lead to end a number of specific crimes like euthanasia, suicide, abortion etc., Professor Hart opines that it is absurd to believe that everything that society views profoundly immoral threatens social existence. In Gian Kaur case attempt to suicide has been held as a crime and in Naz Foundation case section 377 of IPC has been held as unconstitutional nevertheless the debate still persists. Many feel that there must be some amendment in punishments. This paper is an effort to delve into various cases related with the topic in the light of law and morality

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INTRODUCTION Law and morality is the battlefield of mans conscience. It even agitated the mind of Socrates when he was in jail and had option of safe escape. Since, for him it would have been hypocricy to violate his principles when the laws had been turned against him so he ultimately took poison. The civil disobedience movement organized by Gandhiji shows that there can be clash of law and morality. According to Merry Warnock1 the question of morality arises with law in the cases relating to sex, cheating and with the questions of birth and death. In the context of law and morality debate in cases of homosexuality and suicide, three prevalent theories can be looked into. J.S. Mill, stood with prevention of harm to others principle, Lord Devlin relied on the principles of enforcement of morality whereas HLA Harts approach was that of protection of only the universal values along with harm to others theory.2 Definition of crime depends on the values of a given society.3 Legislation began its career from the renaissance and according to Richard Hooker questions of law was supported by reason, Francis Bacon stood for progress and utility as the rationale behind legislation and John Locke stood for the liberty and welfare of the people. Montesquieu in, Spirit of Laws4 has insisted that legislations should be in conformity with spirit of the people. According to the German philosopher Leibnitz, law must serve morality because what is against the morals is bad law.5 For good life, morality is necessary and to maintain morality legislation is a must. Legislation is the frame work which is required to be made for good life.6 The Forty Second Law Commission has delved into the intricacies of law relating with section 377 and section 309 of Indian Penal Code (IPC), received indecisive public opinion on decriminalization of homosexuality.7 It recommended repeal of law punishing attempt to commit suicide and homosexuality as being harsh and unjustifiable.8

See SIOMON LEE , LAW AND MORALS (1986). HLA HARTS, LAW, LIBERTY AND MORALITY 28-31(1963). KRISHNA IYER, PERSPECTIVES IN CRIMINOLOGY AND S OCIAL CHANGE (1980). MONTESQUIEU, SPIRIT OF LAWS (1989). LEIBNITZS, RILEY, PATRICK, UNIVERSAL J URISPRUDENCE, JUSTICE AS THE CHARITY OF W ISE 1996.

Kartar Singh Mann, Working of Legislatures in the matter of legislation, 33 Journal of Parliamentary Information, 493 (1987) . 7 Law Commission of India, Forty Second Report : The Indian Penal Code (Government of India, 1971), para 16, 124.

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DEVLIN--HLA HART DEBATE The recommendation of Wolfenden Committee9 for decriminalization of consensual homosexual act in private triggered debate between Lord Devlin, a distinguished jurist and Professor HLA Hart10 on the operational orbits of criminal law and morality and their interplay in the sphere of sexual morality. Lord Devlin,11 assailed the Mills thesis and the Wolfenden Committees formulation of criminal law vis--vis private (im)morality. Lord Devlin says new ideas galloping around the outskirts of society, seek admission, but each one first wins its spurs is resisted by law. In a changing society, law acts as valve. New policies must gather strength before they can force an entry. When they are admitted and absorbed into consensus, the legal system should expand to hold them as it should contract to squeeze out policies, which have lost the consensus. He observed that moral principles are accepted as the basis of criminal law and the breach of them is an offence against society as a whole. If order and decency is eliminated from criminal law, fundamental principle would be overturned and will lead to end a number of specific crimes like euthanasia, suicide, abortion etc. Many people argue to reform laws of these subjects, but no one suggests complete elimination of these crimes. These can be brought within crime only as a matter of moral principle. It must be remembered that it is very difficult for immorality to be condoned by the law.12 Only Society has the right to pass judgment in the matters of morals and to use criminal law to enforce those moral judgments and case of Bowers v Hardwick13 ruled that condemnation by society of an act as immoral is a sufficient reason for a state to ban it. Without shared ideas on morals and ethics, no society can exist. Agreement about what is right and wrong, which operates as an invisible bond keeps the society intact. If social morals are not enforced the society will disintegrate from within. Therefore criminal law has legitimate claim to speak about (im)-morality. The society has the right to preserve, through

8

Ibid, Para, 16.33.

Committee on Homosexual Offences and Prostitution, 1957. Report of the Committee on Homosexual Offences and Prostitution. London: Her Majesty's Stationery Office.
10

See Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75(6) Yale LJ 986 (1966). PATRICK DEVLIN, THE ENFORCEMENT OF MORALS, (1965). Ibid, Supra note 9 at 6-7. 478 US 186 (1986).

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the weapon of criminal law and its sanctions, its moral code for the social existence.14 Many areas of law functions to enforce morals standard15 and embody a system of rights based on moral principles16 for example due process clause17, and the reinforcement of moral standard in society in the form of punishments.18 Professor HLA Hart has also addressed the question of moral principles and criminal law.19 Hart questions that: If it moral for making immorality a justification making the conduct punishable? Unlike Lord Devlin, Professor Hart opines that it is absurd to believe that everything that society views profoundly immoral threatens social existence rather, it depends upon the nature and characteristics of every society and on the moral principles that the society wants to preserve.20 Hart rejected the arguments of Lord Devlin, as a mere a priori assumption that the deviation from accepted sexual morals is something that threatens the existence of the society. Harts theory is akin to Blackstones Commentaries on the Laws of England21 that law must protect the inviolability of person and property. JS Mill also supports that, administration of law, against will, should be only to prevent harm to others and own good either physical or moral is not a sufficient ground. The conduct from which an individual is deterred must be something which can produce evil to someone else.22 DEBATE ON HOMOSEXUALITY AND SUICIDE The Devlin-Hart debate leads to two conflicting paradigms on criminalization of homosexuality and suicide. First paradigm justifies legislative interference against homosexuality the moment it

14

Ibid, Supra note 9 at 8-14. BURTON M.LEISURES, LIBERTY, JUSTICE AND MORALS 19 (1973). Solsebee v. Balkcom, (1949) 339 US 9. Ibid. See supra note 15. HLA HART, LAW, LIBERTY AND MORALITY 14 (1963).

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See HLA Hart lecture I: The Legal Enforcement of Morality as cited in K.I. Vibhute, Consensual Homosexuality and the Indian Penal Code: Some reflections on interplay of law and Morality 51 JILI 1 (2009). BLACKSTONES, COMMENTARIES ON THE LAWS OF ENGLAND (1765-1769). MILL, JOHN S TUART, ON LIBERTY 109 (1914).

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is perceived as immoral and second approach goes against the legislative interference of homosexuality merely on the ground that it is immoral. The decision of Delhi High Court in Naz Foundation case23 that section 377 of IPC violates Article 14, 15 and 21 of Indian Constitution has further aggravated the debate. However, Anil Kumar Sheel v. Principal Madan Mohan Malviya Engineering College24 case has observation that unnatural offence is primarily a matter of morality and state has to be naturally concerned with the issue. It is difficult to say, with precision, as to whether the law against homosexuality provided in section 377 and section 309 is premised on morality, or the harm to others principle. Law Commission observed that punishment provided in section 377 is unduly harsh and unrealistic.25 However, It observed that it cannot be disputed that homosexual acts and tendencies on the part of one spouse may affect the married life, is a potential threat to family institution----a ground for criminalizing homosexuality on social justification. Like section 377 of IPC, a similar debate has been going regarding section 309 which penalizes for the offence of attempt to suicide. Act of self destruction attacks the presumptions that life is to be lived therefore responses to suicide have involved emotionally charged attitudes.26 Equally regarded is the theory that death is simply changing the old body into a new one by the process known as Kayakalp, a therapy for rejuvenation.27 In the case of Maruti Shripati Dubal v State of Maharastra,28 the High Court has pointed out that it is not clear which act or acts in a series of act will constitute the attempt to suicide and where to draw the line is not known. In P.Rathinam v U.O.I29 section 309 of IPC had been declared unconstitutional on the ground of being violative of Article 21 but subsequently in Gian Kaur v State of Punjab30 it was held that section 309 is

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2010 CriLJ 94. AIR 1991All 120. Ibid, supra note 7. ENCYCLOPEDIA OF CRIME AND J USTICE (1983), Vol. 4 p. 520. G.P. Tripathi, Right to Die, World Congress on Law and Medicine, New Delhi. 1987 Cri LJ 743 AIR 1994 SCW 1764. , AIR 1996 SC 946.

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constitutional. However the debate still continues since there has been a difference of opinion among philosophers, moralists and sociologists upon what constitutes suicide and persons attempting to suicide should not be treated as criminals and should be administered psychiatric treatment because suicide basically is a call for help. The causes of suicide are many have always been varying.31 In our country different forms of suicide are known for example Johars, Sati, Samadhi, Parayopaveshan (starving unto death) and Atmarpana (self sacrifice) and out of these sati has been declared as offence punishable by law. The social thinking regarding suicide has always been changing. In conservative English society, suicide was presumed to be felony requiring burial in public highway, followed by forfeiture of property,32 whereas presently, Suicide Act 1961 does not regard attempt to suicide as an offence.33 Government has issued a recommended all authorities that attempted to suicide should be regarded as a medical and social problem rather a crime. However, legalizing suicide may have undesirable results and people may use it as a tool to enforce their terms and conditions in various transactions. For example, section 15 of Indian Contract Act 1872 says that if the consent has been obtained by coercion such contract shall be voidable. In case attempt to suicide is legalized section 15 of Indian Contract Act may lose its efficacy. Secondly, legalizing section 309 may act as a defense in cases involving section 306 of IPC. However, due to section 309 a person is often doubly punished who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. It would be wrong to think that a person attempting to commit suicide does not get punished. The agony undergone by him and the ignominy to be undergone is definitely a punishment. In the case of Court on its own motion v. Yogesh Sharma, the court had quashed all 119 proceedings pending in the trial

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HALBWACKS, MAURICE, THE CAUSES OF SUICIDE, 361-365 (1978). LOUIS BLOOM COOPER, LAW AND MORALITY 201 TO 207. (1916).

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Suicide Act 1961 Section 1, Suicide Cease to be a crime Rule of Law whereby it is crime for a person to commit suicide is hereby abrogated.

court on the ground that dragging on the prosecution for years when the victims have had enough of misery.34

CONCLUSION Presently, humanitarianism is the throbbing principle of legislation35 therefore while retaining the law against immorality in cases of suicide and homosexuality, a set of elastic principles must be kept in mind that rather than going by the head counts one should rely upon acceptability among right minded persons or men in the Clapham omnibus. For judging against homosexuality and suicide, there must exist a real, not a manufactured, feeling of reprobation and disgust. A penal law needs to balance among sexual morality, individual autonomy and the demography of the individual in cases of homosexuality and suicide. Homosexuality deserves to be criminal wrong under Indian Penal code until the Indian Society perceives it a moral wrong however, notions of right and wrong are not based upon any specific truth, but solely upon the perception of the moment and are totally transient in the eye of the beholder---the legislature. Similarly the laws dealing with suicide should be suitably amended so that the accused of offence of attempt to commit suicide is saved from double ignominy. This can be done by mandatory speedy trial which has been recognized as a part right to life under Article 21.36 Jurisprudence recognizes some theories of punishment. In cases of attempt to commit suicide deterrence theory is wholly inapplicable since such a person does not need deterrence, as he is already deterred by life. The retributive theory is also not suitable since the accused avenges against none but himself. Section 309 disapproves preventive theory and it is antithesis of the law of suicide since prevention never rules out possibility of further attempt. Expiatory theory based on Gandhian way of life, hate the sin not the sinner, proves the futility of present law of suicide. By punishing a person attempting a suicide there is no expiation, rather he is branded as a criminal who he never was. Reformative theory may be effective as Italian Philosopher Baccariain, in his pamphlet Delict and Crimes mentioned punishment of crime must be used

34

Criminal revision No. 23/85.

35

Kartar Singh Mann, Working of Legislatures in the matter of legislation, 33 Journal of Parliamentary Information, 493-495 1987. . 36 Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1360

only for the defense of the State and people and not for retribution. Instead of punishing such persons, they should be treated as patients requiring psychological treatment and mental rehabilitation. Borstal like institutions should be set up for persons attempting to commit suicide where they should be trained and geared up for facing the odds of life. Darwin rightly said, Save this species. Judges must promote the flowering justice by abandoning status quoist approach. We expect some pragmatism on the law of suicide and homosexuality by our judiciary. The wiser heads would do it soon because this penal provision needs a retrospection which in the present situations is a question of esoteric irrelevance. Since the high sounding Preamble of the Constitution mentions as the objective not only justice, social, economic and political but also preservation of the dignity of the individual.

References

Articles 1. Gay Sex and The constitution: Naz Founation and Lawrence Compared, 51 JILI (2009) 2. Suicide and the Law Harvard Law Journal, p. 331, 1967 3. A. R. Reddy, Does Threat to Commit Suicide Amount to coercion, 1989 Cri LJ p. 118 4. Dr. Uma Mohsin, Homosexuality Under Personal Laws, 1987 Cri LJ 187 5. Shantimal Jain, Anachronistic Law on Suicide---Must Be Scrapped, Cri LJ p. 41 6. K.I. Vibbhute, Consensual Homosexuality and the Indian Penal Code: Some Reflections on Interplay of Law and Morality 51 JILI (2009) Cases 1. State v Sanjay Kumar, 1985 Cri LJ 931. 2. Maruti Shripati Dubal v State of Maharastra, 1987 Cri LJ 743. 3. Court on its Own Motion v Yogesh Sharma Criminal Revision No. 230/85 4. P.Rathinam v UOI, AIR 1994 SCW 1764. 5. Gian Kaur v State of Punjab, AIR 1996SC 946. 6. Jagdeeshwar v State of Andhra Pradesh, 1983 Cri LJ 549. 7. Naz Foundation v Government of NCT of Delhi and ors. 2010 Cri LJ 94. 8. Griswold v Connecticut 381 US 479 (1965) 9. John Geddes Lawrence and Tyron Garner v. Texas (Lawrence) 539 US 558 (2003) Books 1. D.D. BAsu, Commentry on the Constituion of India, vol2 8th Edition 2007 Wadhwa and Nagpur. 2. Shukla VN, Constituion of India 11th Edition Eastern Book Company edited by MP Singh. 3. Ratanlal and Dhirajlal, Indian Penal Code 3oth Edition Reprint 2007 Wadhwa and Nagpur. 4. Pillai PSA, Criminal Law 9th Edition Lexis Nexis Butterworth 2000.