In the context of criminalisation, the harm principle as postulated by John Stuart Mill is a theory which attempts to, on the face of it, provide an objective standard for acts that should be criminalised. Mill, succinctly, is of the opinion that coercion on part of the state is justified if, and only if, the acts it seeks to prevent are such as to cause harm to others, or has the potential to cause harm to others. This principle of harm, however, is mute about what exactly this creature called ‘harm’ is composed of. Defining harm is not only important academically, but like all areas of criminal law, it has important practical consequences as well. From the point of view of the victim, it is crucial because his welfare and wellbeing hinge on this definition. For the offender/potential offender, it is important as regards uniformity of justice as well as the requirements of rationality. Coercion or intervention on the part of the State is a gross infringement of the rights of the person, and must therefore be sufficiently justified.

In this article, I shall focus primarily on the construction of ‘harm’, and how feasible the application of the principle is for an objective definition of ‘harm’. The criteria for criminal harm shall be examined, and a standard proposed by incorporating both moral and legal aspects of injury. Further, the discord with paternalism shall be examined by analysing the Delhi High Court’s recent Naz Foundation judgment, in the light of paternalism and the harm principle. Finally, I shall present my conclusions regarding criminalisation of harm and reconciling paternalism with the harm principle.

What is Harm?

Seemingly innocuous words are sometimes – often - a lawyer’s worst nightmare. ‘Harm’, as used in the harm principle, implies harm to others. But what is this harm?  Can all kinds of harm – ranging from hurt feelings to a fatal wound – be brought within the umbrella of the harm principle? It would seem prima facie, utterly unjust to criminalise acts such as calling names, or reading a book that others may find offensive. What is offensive to one is not necessarily ‘harmful’, as J.S. Mill intended it in his definition. Harm is a broad term – it may mean physical, mental or economic harm, or any combination of two or all of the three. What is clear from the definition; however, is that the harm being referred to is harm to others, which must mean that harm to oneself is either not a criminal act at all, or that the philosophy of the principle does not permit the intrusion of the state into private life when the harm caused is not to others, but to oneself. This shall be discussed in detail later in this paper. Let us for now concentrate on the nature of this harm.

Harm may be caused in a variety of ways, or degrees. There is harm of a mild nature, such as reading material others may find offensive. There is harm of a slightly more severe nature, such as bumping into someone while walking along the street. And then there are the ‘serious’ harms – causing grievous injury, or killing someone. Where to draw the line of criminalisation is the problem at hand. Criminalisation of harms such as reading/viewing offensive material (for example, the Danish cartoons depicting Prophet Muhammad, which offended the religious sentiments of Muslims) is the first issue – is it not ‘harm’ to another? According to the definition of harm: either (i) physical or psychological injury to someone or (ii) wrong or evil; the aforementioned situation fits (ii), prima facie. But the definition is of harm, not of criminal harm. To criminalise such things which offend sentiments and cause no serious harm – in my opinion – is irrational.

The first argument for this is that the harm caused is not such as to violate any right of these individuals (here: the Muslims whose sentiments are offended) and thus, the coercion on the part of the state is not sufficiently justified. ‘Right’ again seems problematic – what kind of rights are being referred to here? Even if there exists no positive right as such, it could be argued that perusing such offensive cartoons offends the morality and thus, the moral right of the ‘offended’ against those blaspheming. Such a moral right must either be objective and universal, or have the support of the general ‘collective conscience’ to be legitimate. Raymond Frey says that a moral right is one that ‘persists in the face of contrary legislation or practice, and which prescribes the boundary beyond which neither individuals nor the community may go in pursuit of their ends’. According to him, conventional morals are ‘weaker’ forms of moral rights, as they differ from group to group. Critical morality, then – and nothing less – can justify the criminalization. Freedom to practice religion is one thing, but this situation is quite another.

There is no interference with the practice of Islam by the readers, only the perusal of published matter – the freedom of speech and expression permits this, which is an example of a legalized moral right (in most countries). The absence of a universality of reason (critical morality), or a legal source at the very least in case of conventional morality thus is good reason for not criminalization of such an act – and also serves as the first standard for harms that may be criminalized.

The second argument against the criminalization of such acts is based on the fact that the seriousness of criminal harm is determined by both injury (harm) and culpability (intent). The most important interests, according to von Hirsch and Jareborg, are those “central to personal well-being”. Logically then, harms that endanger this well-being should be criminalized. The standard of endangerment (or reduction in well-being) that has been assumed is a ‘drastic’/serious reduction, which is a clearly subjective criterion. This has been preferred over Feinberg’s ‘welfare reduction’ criterion, mainly for the reason that Feinberg objectively prioritizes a certain type of aim(s) as ‘focal’. This is not fair, for it cannot be assumed that everyone believes so. There are people for whom long-term goals are irrelevant, and the prevention of immediate harm might be more desirable as compared to something that affects their career prospects. This is one part of the second argument. The second part is intent.

Intention to cause harm must be a boundary of differentiation – two blows, one accidental and the other intentional, cannot be assigned the same level of culpability. While, prima facie, they cause the same amount of injury/damage – one is more serious than the other for the potential harm it represents to society. In such a case, coercion/intrusion on the part of the state is justified. Here, what is being done must be clear – are we creating a curtain, in front of which lies harm that cannot be criminal for lack of intent, and behind – that which is criminal for the reason that it is intentional? Or are we simply creating degrees of harm which are all criminal nonetheless? The answer to this is neither. Assumption of the first is problematic for obvious reasons. Considering the second begs another question – is the creation of such degrees feasible? Is it rational to criminalise all acts that are ‘wrong’, such as uttering obscenities, even though the punishment for the mildest forms is minimal?

In my opinion, nine people out of ten will answer this question in the negative. Saying offensive things, reading offensive material – all of these seem more to do with bad manners rather than bad morals as pointed out by Feinberg - and correcting manners on the part of the state seems a lot like sweeping the front yard when a hurricane is on its way. All this, I believe, hinges on the fact that the intent of a person who abuses can never be to cause the kind of harm that is intended, say, by a person who slanders you – the test must be necessarily subjective. This is my second criterion, or second standard for harm that may be criminalised. The composition of such a test is not within the scope of this paper, and shall not be investigated further. It is sufficient, for present purposes, to say that all kind of offences must be looked at individually to gauge criminal harm, and generalisation generally leads to problems – it is not possible to predict and categorise every kind of offence and form a rule that covers them all.

Legal Paternalism and Autonomy-Coercion Standoff

The harm principle, while allowing for coercion in order to prevent harm to others, is silent about the harm people may cause to themselves. Is it justified for the state to criminalise acts that may cause harm to the actor, or is this ‘extension’ opposed to the very foundation of the harm principle – autonomy? The rules framed in order to prevent people from harming themselves – for example, criminalisation of the attempt to commit suicide - restrict the person’s liberty to make that particular choice which may result in his/her harm (in this case, death). Applying the harm principle to such cases fails, which prima facie suggests that if the harm principle is to be the standard for criminalisation, it must be extended to include harm to self. So we have two issues before us – should harm to self be criminalised, and should the harm principle in its Millian form be the standard for criminalisation? Answering the first will also answer the second, and so it is this issue that shall be addressed – is the criminalisation of harm to self necessary? If so, should it be done subjectively, or is the creation of an objective standard possible?

It must be understood that the acts people do that harm/may harm them are not done in a social vacuum – there are people around or related to them who are affected by these same acts. Taking an example to illustrate, X commits suicide. Suppose X is an adult man in rural India, and the sole breadwinner in his family. Does not his act jeopardise the psychological and emotional health, as well as the financial future of the family that survives him? The liberalist argument, that the autonomy of the man is paramount, and may not be interfered with as long as his actions do not harm another, fails here – his actions are directly affecting his family, and reducing the welfare/benefits that they are ‘entitled to’, if we consider Raz’s idea of harm. On the other hand, there are people who commit acts of self-harm, who have no surviving family, or are homeless – these can be reconciled with the above as exceptions. In their cases, their acts do not affect anyone other than themselves. In such cases, coercion on the part of the state would be unjust. In cases besides the exception, however, criminalisation of harm is permissible, as also it is reconciled with the harm principle.

The argument against paternalism is based on the fact that the autonomy of the individual must take precedence over welfare/safety when the act only affects the individual performing it. Acts like homosexuality, for example, are criminalised in most countries even though the ‘harm’ they cause is not palpable. Moralism cannot be the only standard for criminalisation – for, as stated earlier, the very concept of morality is subjective. Here, the homosexual has conformed to his own moral values (i.e. his sexual preference) which are shared by like individuals (and even others, increasingly, are coming to believe that it is not immoral or unnatural) but these morals are against the view of the current majority (conventional morality).

Is it right, then, to criminalise purely on this basis, of differing degrees of conventional acceptance? The standards proposed in the first part of this paper are for harms to others.But here, we are dealing with the criminalisation of homosexuality as harm to the self. Do the standards need to be different (for human nature is such that individuals put their interests before all else, with little or no exceptions)? Moreover, can this be reconciled with the harm principle and constitute ‘harm’ so that the harm principle may be applied, such as in the case of suicide as discussed above?

Lessons from Naz Foundation

The recent judgment of the High Court of Delhi in the Naz Foundation case on the issue of homosexuality was interesting not only for the verdict, but also for the arguments presented on behalf of the respondents – which shall be discussed hereinafter. Through this - a juxtaposition of the state’s paternalism, and the rationality of its arguments as per an impartial adjudicator (the judiciary) – more precise conclusions can be drawn.

The principal legislative purpose of illegalising homosexuality, it seems, is that it is ‘against the order of nature’ and ‘unnatural’. Sexual perversity is the yardstick for acts that attract S. 377, and homosexual sodomy has been deemed to be a sexually perverse act. This is problematic in itself for two reasons. First, there is no justification given for such an assumption except that it is based on traditional ‘Judeo-Christian morality’ – which is not the same as critical morality; and secondly, is ‘outdated’ either way. This is because it considers sex in purely functional terms (‘procreative’). There are many married couples who choose to remain without children, or use contraception if they do not want to conceive any more. Is their marital intercourse then also ‘perverse’ based on such a system of morals? It is not. Critical morality, as I have argued earlier, is dynamic and ancient moral systems cannot be the sole basis for current legislations.

The state in this case seems to be torn between harm-prevention and benefit-promotion – prevention of spread of AIDS and public health are the reasons given for its stand, while the petitioners cite the ‘pursuit of happiness’ and the widening of the scope of article 21 to encompass ‘private, consensual sexual relations’ as one of the reasons for legalisation of private homosexual acts. Importantly, two wings of the government filed opposing affidavits, with the Ministry of Health and Family Welfare insisting that the illegalisation of homosexuality drives such acts underground and thus results in the spread of the disease by hampering the efforts of the state in reaching out to such minority groups. The state countered this by stating that the illegalisation of homosexuality would not serve such purposes (relying on the assumption that homosexuality is a mental disorder, while it has been clearly stated that sources such as the WHO and the Diagnostic and Statistical Manual of Mental Disorders removed it from their lists of mental disorders). This is patently absurd.

Section 377, in this regard, is a piece of paternalistic legislation reasoned on incorrect assumptions – those of morality and public health. The restrictions on the autonomy of homosexuals are thus not sufficiently justified, and are a classic example of hard paternalism that is evidently blameable – adults are being treated as children, by having their sexual preferences dictated to them. There is no ‘harm’ caused by homosexuals then, either to themselves or to others. What would be a better option here is making involuntary intercourse of the kind illegalised in S.377 a crime and nothing else – between humans, of course. This ‘soft’ paternalism (according to Feinberg) is principally the same as Mill’s principle of harm – one protects a person from the choices of others, the other from his own (non-voluntary) choices. In this way, autonomy is preserved without compromising on any unwanted harm caused to the individual.

Conclusions

To start with, there was a very vague idea of harm for the purpose of the harm principle. In this paper, two standards were proposed for the act to constitute criminal harm – one, that there must be a universality of reason in favour of criminalising it and two, it was proved that generalisation does not fetch accurate results – there needs to be subjectivity exercised on the part of the legislators. Two things need to be kept in mind here. These two standards go hand in hand, and must be exercised in conjunction. Also, the vagueness of the second standard is not a lacuna, but instead suggests that crime is, at the end of the day, a social construct.

The purpose, more than to set out an accurate test for harm, was to point out the negligible role objectivity has to play in the construction of criminal ‘harm’ – as regards both morality and the act itself. In the next part of the paper, paternalism was analysed, with a special focus on the Naz Foundation judgment. What can be concluded is this – in cases where harm is caused to people other than the actor, coercion can be justified on the basis of the harm principle, and the standard of ‘harm’ to be used therein. In cases where the harm is caused only to the actor, two things need to be looked at.

• First, is the ‘harm’ really harm, or just the objective viewpoint of the state being forced upon the individual, whose choice is thus curtailed for no reason?
• Second, if the harm is caused by a voluntary choice - the same reasoning as above follows. It is harm from non-voluntary choices that the individual needs to be protected from (if there are grounds for ‘suspecting it did not come from his own will’ – such as for a man suffering from autism).

s long as the above two are satisfied, paternalism can be incorporated with the Millian principle of harm for a more comprehensive definition of criminal harm.