Upholding Morality

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Constitutional Law has historically, always been linked to the idea of justice, but the link between law and morality has been a highly debated topic over the years.

The relationship between morality and law is one of the more enduring problematics of jurisprudence. It has come to be the locus of the dispute between natural law and legal positivism and has generated a variety of controversies about the scope of legal enforcement. Like many perennial philosophical issues, moreover, it has endured because we are pulled in two opposing but equally plausible directions.[1] The two possible stands that can be taken in the argument for the relationship between law and morality is the stand of Naturalists and the stand of Positivists.

According to Naturalists, the law is what it ought to be. The status of law depends on some factors external to the legal system, normative in nature, not the same as one ought not to murder. The external factors may be varied. However, whatever is the factor, the validity of a law can be assessed by the application of human reason. Some of the naturalists use the external factors not as a criterion for the existence of the laws but as evaluative criteria.

On the other hand, Legal Positivism is the thesis that the existence and content of law depend on social fact and not its merits.[2] The Positivist school of law believes that law is a body of rules formulated by the state and that citizens are obligated to obey the law for the good of the state. Law serves no moral purpose other than to ensure the survival of the state, and obedience to it was no longer a matter of conscience. Positivists are analytical and there is no necessary connection between law as ought to be. Law is independent of morals, the legal system is a closed logical system, moral judgements cannot be established or defended.

Both the stands on this issue have their appeal but after reading and conducting individual research on the relation of law and morality, I am leaning more towards the Naturalist approach towards law and I will present my thoughts on why Naturalism is the correct approach to law.

Naturalism presents the idea that the relation between law and morality should be interrelated, that is, law and morality are directly linked to each other and one stems from the other. When we come to think of it, the law is a direct result of morality because of the following reason –

Law, as we know, sets up a definite framework of rules and regulations which is based on what is right, and what is not. We as humans decide what is right and what is not from several factors, such as, our upbringing, the community, and people we are around, our religious ideologies and preferences, the education that is given to us, etc. Let us take an example to prove the above statement – The consumption of beef (from a cow), is considered unholy by the Hindu tradition. It is a popular form of animal protein consumed around the world and, is a part of the daily diet for the people of some religions.

Since India is a Hindu majority country, many states banned the slaughter of cows and the selling and consumption of beef. As of December 2020, 20 out of the 28 Indian States have strict regulations on the slaughter of cows and the sale and consumption of beef. This goes to show that India, although being a constitutionally secular nation, favoured the religious belief of the majority in believing what is right and what is not, and framed laws as per.

In my opinion, a naturalist approach to law is the best bet for serving justice through law. I will try and justify this statement with an example – [TRIGGER WARNING: SEXUAL HARRASSMENT] On the night of December 16, 2012, 23-year-old Jyoti Singh and her friend, Awindra Pratap Pandey, boarded an off-duty charter bus at South Delhi in which there were six other men including the bus driver.

The bus started moving in an off-route direction and the men shut the doors of the vehicle. Suspecting something wrong, when Pandey objected, he was shouted down and a scuffle broke out as the drunk men, started molesting Jyoti. Pandey was knocked down with a rod and the men dragged Jyoti to the back of the bus and repeatedly gang-raped her for over an hour. As she fought back, one of the juvenile attackers inserted an iron rod into her private parts, pulling and ripping her intestines apart.

The bus driver drove all over Delhi while this was happening. After the attack, both of them were thrown out of the bus to die at the side of the road, the two were found half-dead by a passerby who informed the Delhi Police. Jyoti was taken to the Safdarjung Hospital where doctors found she had only five percent of intestines left inside her body. She succumbed to her injuries on December 29, 2012. All the six men in the case, including the juvenile, were convicted by the court.

All the accused were identified as Ram Singh, Mukesh Singh, Vinay Gupta, Akshay Thakur, and a juvenile. Ram Singh, the bus driver, committed suicide on March 11, 2013, in Tihar Jail during the trial. The minor was tried separately in a juvenile court and given the maximum sentence of three years’ imprisonment in a reform facility. In September 2013, the trial court had awarded capital punishment to Mukesh, Akshay, Pawan, and Vinay. Subsequently, the three convicts besides Akshay had sought review of the judgement but it was dismissed.

The order on the review petition filed by Akshay was dismissed by the Supreme Court on December 18, 2019.[3] These were the facts of the infamous Nirbhaya rape case which sparked protests across the country and brought about changes in laws for sexual harassment against women. Now the main focal point of this example in the context of the minor. While all the other convicts were awarded capital punishment, apart from the bus driver who committed suicide while in jail, the minor was sentenced to only three years of imprisonment in a reform facility.

From the facts we can see that the minor was arguably the most vicious of all the convicts yet, he received the least punishment for his crime even though he was an adult at the time of his hearing. Now, if the approach to minor sexual harassment laws in India had been framed with a naturalistic approach, the minor would have received equal punishment to all the other convicts, that is, capital punishment and true justice would have been served.

After the Nirbhaya case, reforms were brought to laws surrounding minor rape cases. To avoid such cases in the future the Indian Parliament in 2015 had passed a bill that allowed the trial of juveniles between 16 and 18 years of age as adults for serious crimes like rape or murder. Before the bill, those under 18 could only be sentenced to a maximum of three years in a reform facility.

The Legislation confirmed that if children within the age of 16 to 18 undertake gruesome and violent murders and rapes, they would be tried and punished as adults. Thus, Criminal Law (Amendment Act) 2013 commonly known as the “Anti Rape Bill” was passed on 19th March 2013.[4]

So, from the previous example, we see how the amendment was brought to the act keeping a morally correct approach in mind. The approach to the amendment was naturalistic. Hence, H.L.A. Hart’s argument that law should not be inclusive of morality is not relevant in today’s day and age. In my opinion, laws around the world should be framed keeping the inclusion of morality in mind because that is what provides true justice.

[1] Bickenbach, J., 1989. Law and Morality. Law and Philosophy, 8(3), p.1.

[2] Legal Positivism (Stanford Encyclopedia of Philosophy) (2020), https://plato.stanford.edu/entries/legal-positivism/

[3] News, I. (2020) What is Nirbhaya case? | What is Nirbhaya case full story? | India News – Times of IndiaThe Times of India. Available at: https://timesofindia.indiatimes.com/india/what-is-nirbhaya-case/articleshow/72868430.cms

[4] Sehgal, D. (2020) Rape charges when the perpetrator is a juvenile – iPleadersiPleaders. Available at: https://blog.ipleaders.in/rape-charges-perpetrator-juvenile/

Written By

Debanjan Kar

Law Student, Jindal Global Law School

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