It is evident that Law and Morality serves to channel our behaviour. Law accomplishes this primarily through threats of sanctions if we disobey legal rules. So too, on reflection morality involves incentives of some sorts. Thus Law and Morality at times seem to be the different sides of a single coin. On one face, it appears that law and morality are separated and miles apart, but on the other side it seems and is understood that both, law and morality are inter-related and actually go hand-in-hand with one another. Over time, with the evolution of the society it has been observed that both have a role to play in the sustenance of and in nurturing each other.
It rather depends on the approach, one takes while looking at the two ideas, which helps in determining the relationship between them. If some ethical approaches, such as certain Natural law thinkers are to be observed, it is seen that morals have been reduced to a series of imperatives, which are then comparable to the rules of law. If Positivists such as Bentham and Austin are taken into regard, the idea that flows from their theories is that positive law is quite distinct from and its validity depends in no way upon the morals. Although, the positivists such as Bentham and Austin, strictly follow that law and morals are situated at the poles, but when the functioning of the human society is considered, it has been observed over a period of time, that moral sentiments on some matters have been mobilised and utilised so as to be translated into law. Thus paper focuses on whether the Primary Function of Criminal Law in Indian is to enforce Moral Principles or not through the analysis of Section 377 of Indian Penal Code, 1860 and decimalization of Prostitution in India.
LAW AND MORALITY – A RELATIONAL ANALYSIS
Law and Morality at times seem to be the different sides of a single coin. On one face, it appears that law and morality are separated and miles apart, but on the other side it seems and is understood that both, law and morality are inter-related and actually go hand-in-hand with one another. Over time, with the evolution of the society it has been observed that both have a role to play in the sustenance of and in nurturing each other.
It rather depends on the approach, one takes while looking at the two ideas, which help in determining the relationship between them. If some ethical approaches, such as certain Natural law thinkers are to be observed, it is seen that morals have been reduced to a series of imperatives, which are then comparable to the rules of law. Natural Law thinking, though, represents a much broader philosophical program. It investigates the moral principles that ought to govern political action, law making and adjudication as well as the personal lives of citizens.
Natural law theories are theories about the relation between the moral natural law and positive human law. Natural law theories vary in aims and content but they share one central idea: that there is a kind of higher (non-human) ‘law’, based on morality, against which the moral or legal validity of human law can be measured.
But that does not mean that the Natural law thinkers are of the idea that Law and Morality coincide completely, and there is a field of Positive law not deducible from any pre-existing or presupposed system of natural law and, therefore morally neutral.
If Positivists such as Bentham and Austin are taken into regard, the idea that flows from their theories is that positive law is quite distinct from and its validity depends in no way upon the morals. Although, the positivists such as Bentham and Austin, strictly follow that law and morals are situated at the poles, but when the functioning of the human society is considered, it has been observed over a period of time, that moral sentiments on some matters have been mobilised and utilised so as to be translated into law, as witnessed with the evolution of Criminal Law in India, through which moral sentiments are reinforced. Examples can be, Criminalization of Homosexuality under Section 377 of the Indian Penal Code, and the debate ever-continuing over the Criminalization and the need for Decriminalization of Prostitution in India (to be dealt with in the subsequent chapters), as the Criminal law in India has time and again shown that Laws which affect both the public sphere and are concerned about the victimization are more effective in changing the existing moral order, and the same can be observed through various legislations enacted by the Parliament, a few examples are, Dowry Prohibition Act, 1961, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, etc.
A more philosophical approach has generally been to follow or adapt the thought of Kant by regarding laws as prescribing external conduct whereas morals prescribing internal conduct, that is, morals alone are concerned with subjective factors, such as motive. But the dichotomy whether law and morals are distinguishable or not continues to an extent, where for some thinkers, morality is in some way an integral part of law or of legal development, and to an extent is inseparable from it. But this does not mean that laws or rules will be or are rejected on the grounds of their immorality. At any rate, it should not be overlooked that even the positivist does not deny that many factors, including morality, may and do concur in the development of a legal rule, and that where there is a possible choice in adjudication, moral or other extra-legal considerations may induce the coming to one decision rather than another. But what should be interpreted form the statement should be that once a rule is laid down or determined, it does not cease to be law on grounds that it is inconsistent to or in conflict with morality.
John Finnis in his works has talked about the idea basic values, from which moral rules are drawn. As it is generally perceived, that the common good is another name for the ultimate moral test, the greatest good of the greatest number when everything is considered. Finnis, predictably, rejected this notion of the common good. One of the charges levelled at consequentialist theory is that the individual is not intrinsically important in the calculi that determine the moral worth of an act or rule. According to him, the basic values from the ‘evaluative substratum of moral judgment’ or the ‘pre-moral principles of natural law’. The (moral) natural law is derived from these values by the observance of practical reasonableness, which, of itself, is a basic good.
Finnis further argues, that moral arguments which the Positivists exclude from jurisprudence are in fact used in the legal sphere and practice quite often by the judges. He puts forth an argument that if jurisprudence banishes such questions another discipline will amount to no more than lexicography of a particular culture. Finnis further states that people separate moral questions and morality from the description of law or the meaning they perceive of law, they’d eventually fail to observe what they propose.
Even if the moralist finds that a law is not obligatory in the moral sense, there may still be a moral reason for obeying it. Where the constitution and the legal system are considered generally good or desirable, the disobedience of particular unjust laws may undermine public respect for the system, with probable harm to the common good. Hence a moral obligation may arise from this collateral source to obey a law that is not obligatory in the third sense.
In addition, Lon Fuller argues that there exists something known as “internal morality” within law. It is internal because it is implicit in the concept of law, and can be described as “morality” because it sets up certain standards for the evaluation of official conduct within the legal sphere or domain. Fuller creates an idea of certain principles which define the inner morality of law, principles such as that law should be clear and intelligible; free of contradictions; constant through time; not require the impossible; and be administered in a way sufficiently congruent with their wording so that people can abide by them. On the analysis of these principles it is further arrived at interpreting that Fuller might believe in the connection between law and morality, and might even consider it a necessary one but has not established the same, quite efficiently.
Positivists, like H.L.A. Hart are of the view that law is not something that is derived from moral principles or ideas, or that there exists some necessary relationship between the two. However, the same in not to be confused with an attempt to establish some sort of “higher law” in the sense of overriding or eternally just moral or legal principles, but is merely an attempt to establish a kind of sociological foundation for a minimum content for natural law.
Gustav Radbruch, a German, shared the positivist doctrine before converting, because of his experience during the tyrannical Nazi Germany. Before his conversion, Radbruch held that resistance to law was a matter for the personal conscience to be thought out by the individual as a moral problem, and the validity of a law could not be disproved by showing that its requirements were morally evil or even by showing that the effect of compliance with the law would be more evil than the effect of disobedience. But after the experience during living in the Nazi Germany, it made him conclude that fundamental principles that talk about the idea of human morality were or are to be the very concept of Recht or Legality and that no positive law or statute, no matter how clear it is and conforms with the criteria for being a valid law is in reality invalid, if it contravened the basic principles of morality. Radbruch opined this doctrine as a criticism to the Hartian doctrine, which talks of “law as it is” and seperates it from “what law ought to be”.
It is to be seen through the discussion and opinions of various thinkers, belonging to different schools of jurisprudence, that one cannot objectively determine the relationship between law and morality. For the likes of Finnis, Fuller and Radbruch, Law should and at in all sense should take regard of the idea of morality. On the other hand, thinkers like H.L.A. Hart and other positivists such as Bentham and Austin, for them, law is what it actually is, i.e., positive law. It is not “what law ought to be”. We can see the disregard they hold for the idea of morals intervening with the domain of Law. It is thus, a debate, which can never really come to an end, a meaningful and substantial end per se.
In a country as diverse as India, with people of different religions, castes, class, speaking different languages, it is to be seen that the law-makers cannot disregard the influence of these social institutions while making law. Religion, as an institution directly or indirectly, always influences the law making process, as it is an institutions which is functional for enforcing certain moral principles within the society. Since, law serves as a tool or a medium for regulating the society’s conduct and in maintaining the equilibrium, definitely gets influenced by institutions such Religion (which enforce moral principles). But it is to be seen that, a strict adherence to these morals might not always be purposeful or meaningful. At times, it is demanded for Law to be objective and free from any moral influence, in order to realize its potential and effectiveness.
ENFORCING MORALITY THROUGH CRIMINAL LAW – AN INQUIRY
Criminal Law in its literal sense means, a part of law, which has been devised so as to punish those who commit some kind of offence or an act which is contrary to the law. The act thus committed is thought to be of danger or threat to the society at large, even though it (the act) is generally committed against a single person or a group of persons. Crime is an act, which is punishable by law and is prohibited by the law. Thus, it can be seen that criminal law performs the function of maintaining the social equilibrium and stability by punishing the elements which intend to disrupt the equilibrium.
The concept of Legal Moralism comes into the picture, the concept can be defined as, the immorality of an act of type A is a sufficient reason for the criminalization of A, even if A does not cause someone to be harmed. Thus, according to the principle of legal moralism, the primary function of criminal law is to prohibit immoral acts, meaning, to enforce morality within the society. Morality is further divided into four distinct domains:
- Autonomy: It basically means autonomy of an individual in making choices from a wide range of options.
- Well-being: It means things which are of public or personal interests, which are ought to be protected by the State.
- Character: This refers to the personal characteristics and traits of individuals. A person who upholds morality would direct his actions towards moral considerations only.
- Excellence: It signifies objects of value, such as natural beauty, which are to be protected from destruction
Thus, the function of Criminal Law becomes clear as to protecting these domains of morality, but it would be a mistake to restrict to only four domains, there certainly exist many other domains of morality.
Lord Devlin, while delivering the Maccabaean Lecture, argues that firstly, the society has a right to protect its own existence, thus by punishing any act which harms or undermines the very existence and Secondly, that if is the majority’s right to follow its own moral convictions in defending its social environment from change it opposes. But this very idea of morals is plagued by subjectivity, as there are principles which are moral to an individual himself/herself, and there are principles which the majority regards as moral standards. For example, one might consider the act of polygamy as morally valid in his own case which might be facilitated by the religion he practices, but there might exist a society which disregard the claim of being morally valid at the same time, and for the same, the society can thus use law to prevent such acts in order to maintain the moral standards of the collectives at large. But then, comes the question of personal freedom, and the toleration of the same. At this juncture, Professor H.L.A. Hart argues against Lord Devlin’s views by stating that, If one holds anything like a conventional notion of a society, he said, it is absurd to suggest that every practice the society views as profoundly immoral and disgusting threatens its survival. But if one adopts an artificial definition of a society, such that a society consists of that particular complex of moral ideas and attitudes which its members happen to hold at a particular moment in time, it is intolerable that each such moral status quo should have the right to preserve its precarious existence by force.
To this, Lord Devlin replies that, his arguments do not assert that any deviation from a society’s shared morality threatens its existence more than he asserts that any subversive activity threatens its existence, rather he asserts that they are both activities which are capable in their nature of threatening the existence of society so that neither can be put beyond law. This view of Lord Devlin puts forth a conclusion, that as long as an act is considered immoral by the society, no matter if it causes an actual harm, and the society hates that act, then it is justified in declaring it as outlaw and criminalize it, which is not quite substantiated by any evidence.
Ronald M. Dworkin in his article, discusses the second argument presented by Lord Devlin during his lecture, that is, it is the society’s right to follow in its own lights. He argues that an act hated by the society is presumed to cause social change, then where is the mechanism devised so as to determine the amount of change, if at all is going to be caused. Since, the society fails in determining the preciseness of such change, then it should not be regarded as rightfully capable of outlawing, as they are not able to determine that whether the institution which seems to be threatened by some act, are sufficiently valuable to protect at the cost of human freedom. Thus, it identifies the fact that mere immorality is not sufficient enough to make a conduct criminal, rather it argues that on occasion it is necessary.
In order to enquire the enforcement of morality via the means of criminal law in Indian context, the two contentious issues are that of Criminalization of Homosexuality and Prostitution.
- Section 377 of the Indian Penal Code, 1860 – An Analysis
The textual reading of the Section 377 of the Indian Penal Code of 1860, states that,
377. Unnatural offences: 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.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section
The language of the section, with use of “carnal intercourse against the order of nature” has made criminals, all those who are homosexuals. Thus, starting of a debate as to what is natural and what is unnatural. The very idea of natural and unnatural is social construct, and relying on this very construct, and snatching away the rights of an individual, is a controversy, yet to be solved. On grounds, that a certain act is considered immoral, which does not cause harm to others, and declaring it as criminal conduct, seems to defy reasonability, as has been discussed earlier. At times regarded as an anti-sodomy piece of law, but the true objective of Section 377 still remains unclear. In order to determine that what type of intercourse is regarded as unnatural, courts have taken the stand that if a type of intercourse, makes it impossible of conception, and thus is against the order of nature, as the order of nature requires that the intention of carnal intercourse is “conception”. Thus making any type of oral or anal sex as an unnatural offence since, it does not lead to conception of humans. Similarly, since the sexual intercourse amongst the homosexuals does not lead to human conception, the definition of the Section 377 has been widened to bring under its ambit the homosexuals as well and thus criminalizing homosexuality. This idea of “order of nature” is what the majority thinks is morally correct, and an act of homosexuality threatens to destruct the social institution of moral enforcements. Thus the law declares, an act of sexual intercourse between homosexuals, as a criminal conduct, just to enforce the so-called “moral principles” of the majority. Recently, in the Naz Foundation judgment, the Delhi High Court had held that the Section 377 was unconstitutional on the grounds that it violated the right to life with dignity under Article 21 of the Constitution, and privacy by violating the Universal Declaration of Human Rights and European Court of Human Rights.
But, the Supreme Court of India, through the grant of special leave against the judgment given by the Division Bench of the Delhi High Court, the court held that:
“We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the 2 Page 3 recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”
While giving its judgment the Supreme Court iterated the fact that, it merely pronounced on the judgment given by the Division Bench of the Delhi High Court regarding the alleged constitutional infirmity, and the competent legislature can further decide on the efficacy of deleting Section 377 of the IPC, 1860, or bring about any amendment that it may consider appropriate.
The Supreme Court through its judgment did answer to the question as to whether the Judiciary is right to get involved into constitutionality of any piece of legislation, that it is to be left in the hands of the competent legislature to determine as to either do away with the provision or amend it. But it further raises the question as to the intention of the judgment. The intention is quite contentious as, it is debated that was the judgment based on Devlin’s argument that as long as the majority of population in a given society considers an act to be immoral, irrespective of the fact that it causes no harm to the society, such an act is fit enough to be termed as an offence under criminal law. Thus, it is argued that is the judiciary, through its judgment on the principles of Indian Penal Code, 1860 is enforcing those popular moral principles in the society or it is not.
- Prostitution in India – A Discussion
Prostitution, has been considered as the oldest profession in the world. Be it India, or anywhere else on the globe, be it modern times or ancient time, be it undercover or explicitly visible, Prostitution has been in existence since time immemorial. The question that here arises is whether the act of Prostitution against morality, and whether criminalization of the same is valid or not. No doubt, that according to the popular social thought in India, any kind of sexual relationship outside marriage is looked down upon as an act of immorality, let alone the concept of selling and buying sex. But the curiosity leads to challenge the idea that is Prostitution morally wrong or not. If the liberalist idea is taken into consideration, then it is characterized as a contractual idea, they believe that instead of being seen as a question of moral importance, it should be simply treated as a contract between two consenting individuals, as selling or buying of any product or service.
This contractualist perspective comes into conflict with the view of moral righteousness held by the people in a society. Prostitution isn’t simply a contractual relationship between individuals, but is a complex system of social conditions which forces girls of young age and older women alike, who are suffering at the hands of society, into leading a degraded way of life. It is more about coercion, and not about freedom and choice. The morality or immorality of an act largely depends on the social situation that surrounds that act, i.e., if the social situation determines an act of pre-marital sex as an immoral act, then the question of violation of moral principles becomes clear enough, but on the other hand, if the social acceptance has been ascribed to the act of pre-marital sex, then the question of morality or immorality does not arise at all. In the Indian context, Prostitution has been always looked down as an act of immorality. India signed the UN International Convention for the Suppression of Traffic in Persons and of the Exploitation of Women, New York, 1950 and subsequently enacted Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) and later on the legislators came up with the Immoral Traffic in Persons Prevention Act, 1986 (ITPA) with the intention to prevent trafficking of people and men, women and girls, as they are forced into Prostitution. As per the Criminal Law in India, the act of prostitution is not criminal, every other act associated with prostitution is criminal, such as maintaining a brothel, living off the earnings of a prostitute, etc. are treated as criminal offences. The Indian Penal Code, 1860 has provided with provisions so as to prevent trafficking of women and children, it also contains provisions that deal with offenses that restrict sex workers.
The aim of these enactments and legal provisions has been quite controversial, as it is difficult to determine, whether the piece legislations, are working in order to enforce moral principles or are simply brought about in order to protect the interest and for the security of women and girls who are forced into prostitution, because of societal conditions. The house is open to debate on the institution of prostitution as being against moral considerations or not, and does the Criminal Law intend at enforcing the prevalent moral principles within the society, by criminalizing various acts related to Prostitution.
Thus, through the analysis of two of the most controversial issues in the present Indian legal scenario, regarding the idea that the primary function of Criminal Law is to enforce Moral Principles, it is to be seen that a great relevance with the Devlian idea is found, in the sense, that the acts of Homosexuality and Prostitution are criminalized because of the perception of the majority of population in the Indian society, that such acts, whether they happen in the private lives of the individuals, and cause no harm to others, but since they are perceived as immoral acts, thus law in accordance with the popular belief, via the means of Criminal Law seeks to enforce the moral principles back in society. A lot has to be learned by the Indian legislators in order to be able to determine with preciseness as to what the function of criminal law is, and what it should be. A great deal can be learned through the analysis of the Wolfenden Report (1957) which differentiated between public and private morality, and considered the homosexual behaviour between consenting adults in private sphere, as the consideration of private morality and not public morality, thus it should not criminalized. On the issue of Prostitution, the Committee submitted that penalties be imposed, so as to remove the presence of prostitutes looking for customers, who would be cautioned first by police, and then if necessary, they’d be brought to the court, but at the same time the Committee rejected the idea of making life as a prostitute impossible by law.
The Committee also addressed the issue of health care of those involved in the profession of Prostitution. The recommendations made by the Committee were regarded as an advancement in terms of handling problems related with the profession, and the same was widely accepted by other European countries as well.
It’s high time, that the Indian legal corridors recognize these issues with more diligence and importance, and instead of running away from these facts, they should try to come up with substantial solutions to deal with such issues.
Through the analysis of the relationship between Law and Morality, through the study of various thinker, ranging from positivists to natural thinkers, which have been in constant debate with each other in regards to the relationship that Law and Morality share, if any. The debate further leads to the enquiry into the question, as to what purpose does Criminal Law serve. Does the Criminal Law as contended by thinkers such as Lord Devlin, the purpose it basically serves is enforcing the moral principles back into the society, but at the same time, thinkers such as H.L.A. Hart would argue that this is not the case. On further analysis, thinkers like Ronald M. Dworkin make it clear that how the ideas of Lord Devlin were flawed. Further, the question as to determining the purpose and function of Criminal Law, the analysis of issues such as Criminalization of Homosexuality, and Prostitution in the Indian context, enables one to understand that at times the Criminal Law does serve to enforce the moral principles, backed by majority of the population. Such a relation, actually undermines the purpose of law, as it becomes subjective and a tool for imposing morality, which itself can’t be precisely determined, into the social sphere and in the course of doing so, loses its integrity. But the idea that the primary function of Criminal Law is to enforce Moral Principles is still open to debate and conflict.
 Ratnapala Suri, Jurisprudence, Cambridge University Press, New York, 2009, pp. 120
 Ibid, pp. 119
 Freeman M.D.A, Introduction to Jurisprudence, Thomson Reuters (legal) limited, London, 2008, pp.41
 Unnatural Offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman
or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
 Freeman M.D.A, Introduction to Jurisprudence, Thomson Reuters (legal) limited, London, 2008, pp.42-43
 Ibid, pp. 44
 Ratnapala Suri, Jurisprudence, Cambridge University Press, New York, 2009, pp. 154
 Ibid, pp. 155
 Ibid, pp. 158
 Ibid, pp. 159
 Freeman M.D.A, Introduction to jurisprudence, Thomson Reuters (legal) limited, London, 2008, pp.120-121
 Ibid, pp. 124
 Ibid, pp. 414-415
 Petersen Thomas Sobirk, What is Legal Moralism?, SATS, Vo. 12, pp. 80-81
 Steven Walls, Enforcing Morality, Criminal Law and Philosophy, Vol. 7, Issue 3, pp. 455-471
 Dworkin Ronald M., Lord Devlin and the Enforcement of Morals, Faculty Scholarship Series, pp. 987-989
 Ibid, pp. 990
 Ibid, pp. 990
 Ibid, pp. 993
 Naz Foundation v. Government of NCT and Ors., 2010 CriLJ 94
Naz Foundation International is an NGO, specializing in providing technical, institutional and financial support for the promotion of sexual health, welfare and human rights of males who have sex with males (MSM) and trans-genders in South Asia.
 Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., AIR 2014 SC 563
 Ministry of Women and Child Development, Government of India and UN Office on Drugs and Crime, India Country Report, 4, (2007), http://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf
See the Law Commission of India’s Sixty-Fourth Report on the Suppression of Immoral
Traffic in Women and Girls, 1856, 1975, http://lawcommissionofindia.nic.in/51-100/Report64.pdf
 Ministry of Women and Child Development, Government of India and UN Office on Drugs and Crime, India Country Report, 4, (2007), http://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf
 Goyal Yugank and Ramanujam Padmanabha, Ill-Conceived Laws and Exploitative State: Toward Decriminalizing Prostitution in India, Akron Law Review, Vol. 47, pp. 1082
 Section 365, 366A, 366B, 367, 370-374, Indian Penal Code, 1860, http://mha.nic.in/sites/upload_files/mha/files/pdf/IPC1860.pdf
 Wolfenden Report 1956, The Report of the Departmental Committee on Homosexual Offenses and Prostitution, http://www.williamapercy.com/wiki/images/Wolfenden.pdf
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