Article 377 and Public Reason

The recent debates on the Article 377 is perhaps a foretaste to the nature of debates we as a nation will see in the coming days. The Article 377 of the Indian Penal Code that defines homosexual behavior as “against the order of nature” dates back to 1861 of the British India. It states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”

Beliefs and Public Reason

Any mature democracy that affirms plurality will need a discursive space and a ‘public reason’ that allows competing voices to robustly contest with each other. This democratic plurality is by its very definition a comprehensive one in that the beliefs and justifications behind those voices seek to share the same public space while conflicting with each other.

The pluralistic character of the Indian context would rightly anticipate conflicting opinions that could often be an irritant to the parties involved. Central to defining the shape of public reason would be the recognition that people function from beliefs that are fundamental to them — be it, religious, non-religious or cultural. That is, even the liberal secularists who may not appeal to any specific religious doctrine retain a religious form of justification for their beliefs. In this sense, atheistic naturalists would be just as religious as theistic supernaturalists or Advaitic monists, in that their fundamental beliefs function as presuppositions—a position argued from rather than a position argued to.

Given that an individual’s fundamental beliefs from where moral doctrines are derived are not shared, it is natural to expect conflicting answers to the question that the Article 377 begs: “what is the order of nature?” Whether it is an appeal to a transcendental law, or to evolutionary biology that prioritizes self-preservation or a procreative ‘order of nature’ against homosexual behavior, there is a moral doctrine that is used to justify it as moral or immoral. Even where there is no overt appeal to a moral doctrine, there still is an appeal to a predefined human nature (however it may be imagined!), that informs how one answers the question. However, given that moral doctrines held function through the agency of individual conscience that is often shared within ideological or religious cohorts, the State does best to remain neutral, lest it supports one group over another.

Criminalization of Homosexual Behaviour
The oft-used reasoning against Article 377—that something is archaic and therefore wrong—is simply erroneous. It is chronological snobbery. After all, that something is old does not necessarily mean that it is false or unreasonable or irrelevant. What sort of public reason can mediate between traditionalists and liberals to vouchsafe the pluralistic character of our society—where plurality itself is not undermined but affirmed along with individual freedom?

While affirming that most behaviors envisaged as criminal in the Article 377, one ought to see what is at stake in the criminalization of homosexual relation between consensual adults for a secular state? For one, it conflicts with a more fundamental right that affirms equal entitlement to freedom of conscience. While the constitution does not prioritize various freedoms, by default, the freedom of conscience and (religious) beliefs (article 25) functions as first among the rest—freedoms of speech, assembly, movement etc (article 19). In fact, freedoms of speech, assembly, movement etc., presuppose the freedom of conscience. If one could not freely believe according to his/her conscience, there would be nothing to speak or assemble about!

Despite how immoral it may seem to another, the moral reasoning pertaining to homosexual behavior (despite being contestable within the arguments about public order, morality, and health) comes within the purview of individual conscience within contemporary secular reasoning. Freedom of conscience and individual liberty, therefore, is a bulwark against criminalizing homosexual behavior between consenting adults.

Preserving Freedom of Conscience
Expectedly, following decriminalization of homosexual behavior the courts and the civil society will face the question of legalizing homosexual marriages. The real challenge in the near future would be to on the one hand, preserve individual liberties over laws such as Article 377, and yet on the other, to prevent the scope of such liberties from attaining a monstrous force, which in turn could deny those very liberties to others to disagree or to call it immoral. For it is the same right—the right to the freedom of conscience—which one appeals to in defense of the practice of homosexual behavior, that  allows another to call it immoral.

In short, we do well to adopt a public reason that privileges the freedom of conscience by decriminalizing an issue pertaining to individual conscience and uphold the same spirit when those seeking liberation become oppressors tomorrow impinging upon religious and cultural beliefs of people. As Rawls in his, Idea of Public Reason Revisited argues, “Central to the idea of public reason is that it neither criticizes nor attacks any comprehensive doctrine, religious or nonreligious, except insofar as that doctrine is incompatible with the essentials of public reason and democratic polity.”


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