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.