Jeremy Bentham, the father of Jurisprudence and Analytical Positivism in his essay “Offences against One’s self” had rebutted all the justifications given by the State for enacting laws on sodomy. Ironically in 1785, he had explained his theory on Sodomy laws, and in Indian laws, it has been adopted in 2018. It almost took us 238 years to accept homosexuality. India has always followed the principle of Social Morality and Majoritarian Notion. Homosexuality was never accepted by the Indian society as it opposes the principle of social morality and since it is not accepted by the majority of people in India, the principle of Majoritarian Notion was followed.
Jeremy Bentham had defined the concept of law as imperative, which is:
- The assemblage of Sign.
- Declarative of a Violation
- Conceived by a Sovereign State.
THE GREATEST GOOD FOR THE GREATEST NUMBER
According to him, Sources of Law is the Will of the Sovereign, which the sovereign body personally adopts and issues. He propounded the Utility theory. This theory consists of four concepts:
- Economic Perspective
- Pleasure and Pain
- The happiness of Social Order
- Right to Property
Sodomy Laws are critically concerned with the Pleasure and Pain theory, Happiness of Social Order, and the Harm Theory. Whether the laws give pleasure or pain, if some laws give pleasure to the society shall be accepted and if the pain is exerted, then that particular law shall not be adopted. According to Bentham, nature has placed mankind under two sovereign masters, i.e. Pleasure and Pain. The consequences of Good and Evil are respectively Pleasure and Pain (1).
Bentham classified jurisprudence of two types, i.e. Censorial Jurisprudence and Expository Jurisprudence. “What law is” is dealt with under the Expository Approach. It is more rigid, without its moral and immoral character, and “What law ought to be” is Censorial jurisprudence. In Navtej Singh Johar vs Union of India, 2018 (2) the Hon’ble Supreme Court had Decriminalized section 377 of the Indian Penal Code, by understanding “what law ought to be.” The Supreme Court had kept behind the concept of Social Morality and interpreted law should not be binding on any person to commit any act done in personal space.
In Bentham’s essay “Offences against One’s Self” (3) he had tested the Sodomy Laws on the following basis if the test fulfilled one or any of the tests; Sodomy Law shall not be adopted:
- Whether Sodomy Laws produce any primary mischief?
Primary Mischief shows direct harm to any other person. Bentham had argued that the consensual homosexual act does not harm anyone else. He clarified the difference between a willing partner and an unwilling partner. The consensual act between willing partners whether heterosexual and homosexual does harm any other person in any way and shall be accepted and later according to him shall not fall under the defense. The consensual homosexual act does not harm anyone instead, it is a source of pleasure to the parties.
- Whether these laws produce and secondary mischief?
Secondary mischief according to Bentham means harm to the stability and security of the society. Sodomy committed by an adult is an act of individual autonomy. An individual’s personal life will not affect the lives of others and harm the security of society at large. He contended that there is no secondary mischief, which he described as something which may “produce any alarm in the community.”
- Whether they cause any danger to society?
As the secondary mischief and danger to society are interconnected to each other. According to him homosexuality, if viewed outside the ambit of religion and morality, is neutral behavior, which is not a means of pain for society.
Since Sodomy Laws do not apply on any three of the grounds, they shall be practiced.
APPLICATION OF BENTHAM’S THEORY IN SECTION 377 OF IPC
Section 377 of the Indian Penal Code dealt with Unnatural Offences. A 5 Judges bench unanimously had held section 377 as Unconstitutional in Navtej Singh Johar vs Union of India (4). By referring to the Nalsa Judgment where (5) gender identity and sexual orientation was discussed, Suresh Kaushal case (6) where social morality was discussed. In the concurring judgment of Navtej Singh Johar,s case, Justice D.Y. Chandrachud has discussed his contentions by supporting the jurisprudential theories of John Rawl, Mill, and Bentham. According to John Rawl’s theory, he had said that Sexual Choices are part of individual autonomy, which means an individual’s personal life will not affect others, every individual has their autonomy. He also referred to the “Harm Principle” as suggested by Mill. According to this theory, State can only intrude in an individual’s private life if harm is caused to others or the conduct is affecting others.
The most important reference made by Justice D.Y. Chandrachud was from the essay written by Jeremy Bentham, named “Offences against one’s self”. He contended that equating content of equality with the reasonableness of classification causes legal formalism. The theory of test provided by Bentham is applicable in India also. There is neither any cause of primary mischief nor secondary mischief nor any danger to society at large. He had also discussed Bentham’s view on decriminalization, where he explained on what grounds Sodomy laws shall be decriminalized. 1. Where the laws are groundless: Where there is no mischief for the law to prevent, such an act is not being mischievous upon the whole society. 2. Where the act is inefficacious: No actions are taken by any person to harm the society, and such law is inefficacious, and it cannot act to prevent mischief. 3. Where such law is unprofitable or too expensive.
He gave few arguments supporting his judgment, where he talked about the conception of “Original Positivism” that it serves as a constructive model to illustrate the notion of choice behind a “Partial Veil of Ignorance” and said sexuality cannot be construed as something that shall be legitimized by the state only in the form of rigid, marital procreational sex and held this contention to be manifestly wrong.
“In its transformational role, the constitution directs our attention to resolving the polarities of sex and binarities of gender.” (7)
Author(s) Name: Ritika Saxena (Shri Ramswaroop Memorial University, Lucknow)
- WRIT PETITION (CRIMINAL) NO. 76 OF 2016
- Offences Against One’s Self by Jeremy Bentham, Edited by Louis Cromptonhttp://www.columbia.edu/cu/lweb/eresources/exhibitions/sw25/bentham/
- AIR 2018 SC 4321
- WRIT PETITION (CIVIL) NO.604 OF 2013
- CIVIL APPEAL NO.10974 OF 2013