From Decriminalisation To Recognition: Revisiting The Hart–Devlin Debate In India's Same-Sex Marriage Jurisprudence
- IJLLR Journal
- 2 hours ago
- 1 min read
Gugha Priya, Alliance University, Bengaluru
ABSTRACT
The ruling of the Supreme Court of India in the case of Navtej Singh Johar v. Union of India (2018) and Supriyo @ Supriya Chakraborty v. Union of India (2023) symbolize two philosophically mutually irreconcilable methods of the Alliance constitutional status of sexual minority rights, divided not by some modification in the text of the constitution but by a complete transformation in the juridical stance. This paper follows up the thesis that Navtej represents a Hartian constitutional philosophy, that is, one that bases its reasoning on the harm principle and emphasizes the relevance of critical morality over positive morality, whereas Supriyo takes a more neo-Devlinite stance, insisting on socially embedded conceptualizations of marriage and reliance on majoritarian consensus on the legislature as a constitutionally adequate justification to be excluded. The paper also argues that the harm principle, as developed by Hart and as applied to the Indian constitutional context, should not be regarded as sufficient to give an answer to the question of recognition; that social moralism as articulated by Devlin and applied in Navtej is insufficient analytical apparatus; and that the exclusion by Supriyo of a doctrinal method and the application of this method in his paper is a philosophically unsound step backwards. The paper identifies that there is a significant gap in the existing literature: the discussion of the Hart-Devlin debate in the context of the Navtej-Supriyo dichotomy is not conducted systematically. This paper fills that gap.
Keywords: Hart–Devlin debate, constitutional morality, Section 377 IPC, same-sex marriage, Navtej Singh Johar, Supriyo, legal moralism, harm principle, positive morality, critical morality, Ambedkar
