Tuesday, November 18, 2008

Article 377: Philosophy Behind the Law

In an article in the current issue of the Economic & Political Weekly, Animesh Sharma explores the jurisprudential basis of Article 377 of the Indian Penal Code, the constitutional validity of which is currently being challenged before the Delhi High Court. While Mr. Sharma's article is a commentary piece and thus short, it serves to provide a useful understanding of the philosophical debates relevant to the provision. In particular, it discusses the noteworthy debate between HLA Hart and Lord Devlin, and relevant US cases. The debate between Hart and Devlin, and Ronald Dworkin's critique of Devlin's position, are amongst the most important reference points for debates on this issue. Surprisingly, while the case before the Delhi High Court has received much attention (even on this blog), the Hart-Devlin debate has not really found its way into the discussions currently being witnessed in India.

2 comments:

tarunabh said...

Madhav, thanks for the link. I don't think that the arguments are any different, but the form has changed. Any discussion on gay rights today is within the framework of human rights. The Hart-Devlin debate did not take place within the context of judicially-enforceable fundamental rights, but rather dealt with the merits of competing policy choices before Parliament. Both, of course, use ideas of individual autonomy, but through different terminologies. That said, I do think the petitioners cited the Hart-Devlin debate before the High Court. The arguments have closed, so now one just has to wait and watch which way the Court turns, and what it makes of this debate (among other things).

jrkant said...

Thought I'd send a link of interest--this is a pretty decent general review of many themes that contributed to the development of 'modern law' during the Raj and its likely influence upon post-Independence legal philosophies/institutions--specifically as they relate to ongoing contests over 'secularism', gender equality, and personal law issues. It's not daringly rigorous, but does manage a interesting overview of the Indian case in comparison to the Chinese.

State, Sovereignty, and the People: A Comparison of the “Rule of Law” in China and India
Jonathan K. Ocko and David Gilmartin
The Journal of Asian Studies, Volume 68, Issue 01, February 2009, pp 55-100
doi:10.1017/S0021911809000084 (About doi), Published Online by Cambridge University Press 27 Jan 2009

Might be worth a look. I do think that your blog emphasizes an issue similar to that proposed by political theorist, Rajeev Bhargava--namely that the link between traditional coursework known as 'political theory' within the context of Indian studies is lackluster at best. His concerns are threefold (at the very least): (1) the PoMo influences have not proven particularly helpful at moving pigeon-holing debates to solution-driven research (2) the discipline of 'political theory' has not been well developed among Indian higher education, which is, in turn, related to this 'lack' in the West, or (3) that political theory in the Western context has rarely focused explicitly upon the pros/cons/challenges/potential of the Indian case for the prospects of debate. I can attest to these being three prime issues that need to be kept in mind--even if this means that Bhargava need to remind his readers occasionally to do so.

I think that the lack of work done within the realm of 'philosophy of law' in India has a bit of overlap with Bhargava's critique.

In closing, your blog is a great archive of links--and very happy to see Rajeev Dhavan pop up here and there. I worked out of his office in 2006--quite a character.

thanks,

Jennifer Coleman