Authored by Abhishek Sanjay, a 2nd-year law student at NALSAR University of Law and Tanya Sara George, a 3rd-year law student at MNLU, Mumbai.
Introduction
Garafalo’s definition of crime, i.e., an act which is ‘immoral’, has taken a back seat to the modern era’s conceptualization that the definition of crime cannot be static, but changes with societal stages. While the Hart v. Fuller debate seems to have been laid to rest with the positivist approach emerging as triumphant in the West, India’s fast-paced jump into Western norms and ideals coupled with centuries of institutionalized traditions has left our framework stagnating with a seemingly developed legal framework illogically kept running by societal ethos, rather than an aim to serve the public good.
Today’s courts have confused the term ‘constitutionality’ with ‘morality.’ This has resulted in a sort of legal paradigm where legislations and provisions that aim to promote modern ideals have oft been utilized by the courts in promoting and rationalising age-old stereotypes and regressive societal values. This paradox is evident in various jurisprudential inconsistencies such as the Calcutta High Court’s decision to state that ‘young girls must control their urges’, blatantly overlooking the legislative intent of protective acts and fostering a victim-blaming ideology or the Punjab & Haryana High Court’s decision to label consensual live-in relationships between majors as illicit and promiscuous, and even refusing them legal protection, despite the law recognizing live-in relationships.
The authors, through this paper, aim to revisit the age-old debate of legality v. morality considering various recent judgements that conflate these principles in an attempted furtherance of promoting ‘constitutionality’. At the onset, the authors elaborate on these two concepts and draw on how they have come to be separated due to the modern positivist approach. After this, the authors analyse the flawed approaches taken by recent judgements in promoting morality in the guise of legality, with an emphasis on the decision given by the P&H High Court.
Legality v. Morality
The parallel between law and morality has always held a central tone to jurisprudential ideals. Undeniably, they are intrinsically related concepts, both offering a sense of normative validity to legislation. The law, initially formed as a byproduct of social and moral forces has conventionally held a paternalistic role in the pursuit of public good. This enabled the intersection of law and morality when adjudicating criminal liability as these acts were considered both legally and morally wrong, thereby granting normative validity to the law.
With development, these concepts have become separated due to the practicalities and flaws associated with granting morality the ability to dictate legality. If the law were to be solely moral, it would depend on which moral norms are practised by a particular community at a particular point in time, thereby corroding its legitimacy. This results in a situation wherein the paternalistic avenues of the law violate another’s personal autonomy necessitating the pruning of morality from legality. Therefore, it is now understood that while the law was related to morality, its normative validity stems from its pure and inherent legal principles. Thus, the 21st-century jurisprudential ideal has established that normative validity gains its authority from the inherent legitimacy of the legal system. This is seen in the form of a positivist approach with moral hues, not forgoing morality, but striking an amicable balance of sorts.
In multicultural India, this has, however, created a flawed system where inconsistencies with moral and legal principles are bent towards fostering morality by the courts. Take, for example, the POCSO Act, which criminalizes consensual sexual relations with minors. The social and moral fabric of traditional India has viewed such relations as moral in multiple instances, especially within the institution of marriage. The act, however, views it as illegal. This inconsistency must ideally be solved by inclining towards legality. But courts have taken it upon themselves to preserve the institutions of family and marriage and thereby decide based on morality. Such circumstances were seen in the Kerala HC and Mumbai HC’s decisions to effectively supersede the provisions of the POCSO Act due to flawed principles of morality and institutional values, failing to consider the legislative intent of the Act. This newfound inconsistency between legal principles and moral authority leads to the question of what normative validity is in 21st-century India; does it comprise the inherent legal system? Or does it draw from extra-legal principles, i.e., morality?
Balking at the developed world’s separation of morality and legality, courts have taken to adopting moral duties, some even contrary to legislative intent, to propose legally binding decisions. For instance, the courts have muddled up statutory directives and invoked moral reasoning to render decisions that ostensibly contravene explicit legislative mandates. This judicial bias towards favouring morality to find safeguards from legal provision was also seen in Mohit Subhash Chavan v. State of Maharashtra wherein the CJI asked an accused whether he was prepared to marry a minor whom he had repeatedly sexually assaulted in order to prevent harsh punishments. The superseding influence of morality was also found in the decision in Suneeta Pandey v. State of UP, wherein the court held that women cannot be classified as accused under the provisions for rape. This is attributed to the ingrained societal and cultural biases behind the provision of women being ‘submissive’ and thereby not being capable of such heinous crimes.
While moral reasoning can be used to supplement the legality of the law in line with the intent of the legislation, such as the approach taken by the P&H High Court, it must not be used to vitiate legal coherence. This recent judicial inclination to utilise moral rationale to bolster legal decisions raises significant questions of consistency among decisions, as morality is subjective and more importantly, evolving. The over-reliance on moral rationale to support legal reasoning contrary to legislative intent not only runs the risk of eroding the principle of the normative validity of the legislation but also challenges the stability and enforceability of the law.
Punjab and Haryana High Court
The Punjab and Haryana High Court recently considered a petition involving a live-in relationship between a woman who divorced in 2013 and a man who remains legally married. The petitioners, while seeking police protection under Article 226, cited threats from their families and argued that their relationship necessitated such protection as a matter of liberty and safety. This claim, however, was dismissed by the Hon’ble Court, which stated that such a relationship claimed by the petitioners could not be upheld by the law. The Court relied on the established precedent of Indra Sarma v. V.K.V Sarma wherein live-in relationships that are ‘in the nature of marriage’ are clearly differentiated. The Court further stated that in the instant relationship, the male partner being a married individual essentially vitiates any legitimacy claimed as it fails to satisfy the essential conditions of a valid marriage as has been set out in Indra Sarma. Much emphasis was placed on marriage as a societal institution, with the Court stressing the role it plays as a cornerstone of social order and a critical institution for the upbringing of children.
The Court, while denying the claim for protection, supported its decision by stating that granting such protection essentially recognises such relationships and thereby undermines the institution of marriage. The Court stated that positive action in the instant case might be construed as a judicial endorsement of such an illicit relationship thereby eroding the moral and ethical values that it seeks to uphold. Additionally, the Court asserted that the rights to life and personal liberty under Article 21 of the Constitution, while fundamental, are not unlimited and that these rights must be exercised within the boundaries of the law and in consideration of prevailing social norms.
It is evident that the Court conflated legal and moral reasoning, as it appeared to justify its judgement within a moral context. This approach raises questions about the precedent this sets for the boundaries of judicial intervention in matters involving personal autonomy and social norms, potentially undermining the former in future conflicts.
Kerala High Court
The High Court of Kerala recently considered a petition to quash criminal proceedings involving a 17-year-old girl who was allegedly kidnapped and subjected to sexual assault by the first accused of the case. The accused, who later married the victim and had children with the victim, claimed that the subsequent reconciliation and marriage showed implied consent. The charges included Section 366A of the IPC and Sections 4 and 6 of the POCSO Act, pertaining to penetrative sexual assault and aggravated penetrative sexual assault, respectively.
The Court stated that the criminal proceedings would disrupt the family’s stability and negatively impact the upbringings of the children born out of the subsequent wedlock. The Court, deriving its powers from Section 482 of the Code of Criminal Procedure (CrPC), which grants it inherent powers to prevent the abuse of the legal process and secure the ends of justice, went on to quash the proceedings. In its reasoning, the Court stressed the importance of family unity and the well-being of the children, suggesting that these considerations should take precedence over strict legal enforcement. The Court also stated that the accused and the victim, now living as a cohesive family, should not face the "hazards of litigation" that might destabilize their lives.
The statutory intent behind the POCSO Act and related IPC (now BNS) provisions is unequivocal: to provide robust protection to children from sexual exploitation and abuse. The very concept of consent, let alone implied consent, is considered alien by the legislation, due to the very fact that a minor is unable to provide valid consent. The Court, in this case, read in the marriage post-facto, as an implied consent thereby undermining the very essence of the legislation. Unlike the earlier case, this reading of external moral judgements was included in its very reasoning and ratio rather than in its obiter dictum. Setting an arbitrary value judgement with a lack of concrete legal reasoning, as a valid precedent runs the risk of the jurisprudential blend tipping over to the moral fabric of society.
Contrary to the previous decision where the judge refused to grant legal validity to the case in the name of ‘morality,’ by blending it with the intended legal principles, here the court took away this case from the legal sphere to restore this ‘morality.’ However, the Court, once again appears to have conflated the ideas of legality and morality. Foregoing the black letter of such crucial and punitive legislation may lead to disastrous consequences. Even though the judgement may be morally acceptable in society, such a clear contradiction to the existing legislation may set a dangerous precedent.
Conclusion
The juxtaposition of the Punjab and Haryana High Court's and Kerala High Court's decisions portrays the persistent tension between legality and morality in Indian jurisprudence. While the former adhered to a legalist approach, blending societal norms with legality, the latter prioritized moral reasoning and the stability of family life over statutory rules and legal validity. As India attempts to reach the jurisprudential ideal, the balance between law and morality must be trodden carefully. Morality must be viewed as a concept that supports the law and not as the thread that pulls the law forward, thereby maintaining the integrity and consistency of legal principles while adapting to contemporary societal needs.
Even when there is a moral inclination, judges must ensure that their decisions are grounded in legally sound reasoning that aligns with legislative intent, as demonstrated by the Punjab and Haryana High Court. Furthermore, when addressing moral standpoints, it is crucial for judges to explain that their decisions are not only a reflection of broader societal values but are also uniquely tailored to the facts and circumstances of the case at hand. By doing so, they set a precedent that is not a blanket application of morality but a reasoned judgment that recognizes the distinctiveness of each case. This careful balancing act allows the judiciary to acknowledge moral perspectives while safeguarding the consistency and predictability of the law, ensuring that legal precedents remain applicable within the nuanced context of each situation.