The state is founded on the minds of its citizens, who are moral agents.” There is a close relationship between ‘morality’ and ‘law’. Ethics teaches the correct code of conduct which helps to maintain an amicable relationship in the society. It helps to promote moral standards so that all the beings co-reside with affinity and fraternity. Legislators through laws and Codes seek to do the same, that is creating boundaries for people so that they do not barge into anyone else’s space, thereby promoting morality and values. Law and morality in a state must go hand in hand, for there is no purpose of laws if they do not promote morality amongst its citizens, which is a code of life. Similarly, morality without the law is purposeless for it would be difficult to get compliance from the subjects of the state and in the event of the same there would be anarchy.
Morals were considered as the end of laws i.e., in Sanskrit also ‘dharma’ implies justice. It was believed that one can secure justice through law, the law which is based upon the morals and therefore the purpose of the law was to secure the welfare of the society and this welfare could be achieved only when the moral was the basis of laws.
The laws penalizing murder, theft, rape, fraud, etc. were made to promote morality and integrity in society. They help in realizing what is wrong and what is right and similarly, what is expected of us as a part of the human race. Plato has very aptly remarked, “the best State is that which is nearest in virtue to the individual. If any part of the body politic suffers, the whole body suffers.”
In the light of the above statements concerning the interrelationship between law and morality, there are different approaches taken up by sociologists and jurists, both approaches look at the importance of the public consensus in varying degrees, for instance, one approach gives more value to the judgment of society in the enforcement of the law, whereas the other approach comparatively gives less importance to the same. The paper deals with the approaches in detail and the two case studies i.e., section 377 and live-in relationships in India.
Approaches to the Role of Law in the Society
Crime and criminals are an indispensable part of any society. What keeps the chaos and anarchy from spreading is the method of sanction, however, one important question which remains and is widely a matter of discussion between the sociologists of crime is “who must decide as to when a crime must be punished and how?”
Over the years, various jurists have debated over the approaches, the relation between law and morals, and how far the society must interfere in the law-making system, ensuing are the principles, debates, and theories carved out by various jurists concerning the ideal and pragmatic approach.
Which Approach is apt for the Contemporary Times?
To understand which approach is most apt concerning contemporary times, it is important to understand both the approaches and what it sought to preach. Hereinbelow the author delves into both approaches, relying on the arguments of pragmatic and idealist thinkers and see one case study concerning India wherein both the approaches have been utilized and understand as to which approach complements better the current times.
The Debate between the Pragmatic and Idealist Approach
The Harm Principle
In one of the greatest works produced by John Stuart Mill, ‘On Liberty’ discusses the concept of ‘negative liberty’. He says ‘keeping all the other factors equal, the state and other fellow citizens must not interfere with the life of an individual. It is for reasons such as these that people in the society feel cramped and suffocated’.
However, it must not be construed that Mill propounds unrestricted freedom. He deliberately mentions in his work that this freedom must be enjoyed by an individual as long as it doesn’t hurt or harm other members of the society. If this freedom harms anyone else the intervention of the state is justified.
One of the greatest works of John Stuart Mill is his ideas on ‘utility’. He says work would be morally justified if it brings happiness to a maximum number of people. This approach of Mill has been criticized for being contrary to his theory of ‘negative liberty’. Mill clarifies that his work on liberty and utility is not in contradiction with each other, however, happiness can be maximized when the interests of individuals are met in society. He believes that the happiness (his idea of utility) derived from individual freedom would far outweigh the coercion put by the society.
Paton: Law and Morality are Distinct but not Separate
Paton says that law, ethics, and positive morality are the three subjects that have something or the other in common between each other. However, they do not overlap with each other. He says law and morality have a very close connection with each other. Neither of the two can survive if the other lags behind for instance. If a law is not based upon the popular morals or the common consciousness of people there is a chance that it shall lag similarly. If the laws are way too high then it would be very difficult for it to be enforced into the society because it is the people who are the subject to such laws.
The Hart-Devlin Debate (Pragmatic v. Idealist)
In the year 1957 a “Report of Committee on Homosexual Offenses and Prostitution” was formed under the leadership of Lord Wolfenden who recommended that homosexuality between two consenting adults must be decriminalized, a statement as simple as this had major implications in the corridors of morality and laws, and it stirred a new debate on the subject whereby jurists and philosophers were divided with their take on the interrelationship between law and morality.
One such major debate was between Professor Hart who favoured the liberal or pragmatic approach and Professor Devlin who vouched for the ideal approach. The debate has various facets to it; the major pointers have been discussed in brief herein.
One of the starting points of the debate was the “connection between sexual behaviour and morality”. The pragmatic approach of Hart and the report of the Committee favoured the viewpoint that the sexuality of an individual is their matter and the state doesn’t have any authority to interfere in that. Devlin stated that the “legal enforcement of particular moral norms is justified in a society if members of that society generally think it is justified” thereby promoting his ideal approach towards laws and morals.
Harmfulness and Wrongfulness
Feinberg, another liberal theorist who worked upon the concept of harmfulness and wrongfulness says harm is a necessary condition to criminalize someone; however it is not the only sufficient condition. The idealist approach whereas says rape must be considered a criminal offense as it would harm the society if it is not categorized as an offense, therefore the concept of ‘harm’ has little relevance.
Positive and Critical Morality
Hart in his work talked about the distinction between positive and critical morality. He states that the morality which the people accept in the society and thereby shared within them is the ‘positive morality’ whereas ‘critical morality’ is the morality or principles of morality which are used for criticizing institutions as well as the positive morality.
Hart on the lines of the above argument says that the question of whether a society can enforce punishment or sanction to make sure that morality is being followed by people at large. It in itself is a question of morality. This distinction lacked in the idealist theory that Devlin propounded.
Devlin in his idealist approach distinguished between the types of offenses, he says if a person is “driving on the wrong side of the road is not immoral and thus must not be penalized by the way of putting in jail”. For such a step is necessary if the offense in question is essentially immoral, he believed that only such offenses must be penalized which are ‘direct consequences’ of immorality and thus he keeps torts out of the ambit of the same.
Devlin based his approach and theory on immoral or moral conduct. However, Hart focused on the consequences of immorality or conduct.
As stated by Feinberg criminal law has three main characteristics which are very important to discuss the interrelationship between law and morality, one of the first characteristics is coercion second is that criminal liability carries a social stigma with itself the third one is criminal penalties restrict individual liberty and autonomy.
Throughout the great debate between Devlin and Hart both of the theorists failed to include the third characteristic that is criminal law invades liberty (penalty), both the theorists failed in saying as to how the criminal penalty invades individual autonomy and puts a very harsh treatment for the offender.
Concerning the second characteristic of criminal law ‘stigma’, there is a close relationship between penalty and sigma. It is the stigma that decides the sanction on criminal liability, for example, a rapist may attract more stigma than a person who has committed a property-related crime. Even if both the offenses are similarly punished, the stigma attached to both of these are different.
Section 377: The Case of Indian Homosexuals
The “Wolfenden Committee Report on Homosexuality and Prostitution” as early as in the year 1957 made a distinction between public and private morality and immorality. The concept of private space of John Stuart Mill argued for a private space that is free of the intervention of the state as long as it doesn’t harm anyone. The Wolfenden report argued –
“There must remain a realm of private morality and immorality which is, in brief, and crude terms, not the law”
The Courts in India sadly never had the opportunity to decide on the state interference in private life and there have been cases where the courts specifically said that the court must interfere. Thereby, clearly following the ideal approach as propagated by Devlin. For instance, in the case of “Anil Kumar Sheel v. the Principal, Madan Mohan Malviya Engg College”, the court said that “the judge must keep his finger on the pulse of the society, and the law cannot undertake not to interfere”.
The court went a step ahead in the case of “Kailash v. State of Haryana” and said –
“Naturally if laws are according to the temperament of a society to which it caters to and it is only then that society could be run smoothly according to laws because such a society would then readily comply with those law”
It was the decision of the High Court of Delhi, which in the year 2009 ruled that section 377 of the Indian Penal Code violates the country’s constitution by prying into the private lives of individuals. It said that consensual sex between adults is very much legal, and it includes gay sex as well.
And finally, it was the case of Navtej Singh Johar v. Union of India, where the Apex Court of “the country read down Section 377 Indian Penal Code (‘S. 377’), decriminalizing sexual relations between consenting adults, irrespective of sexual orientation or gender identity”.
It is very pertinent to write at this point and a remark without which this project shall stand incomplete is the remark of Justice Indu Malhotra –
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.”
Live – In Relationships: Destroying the Social Fabric?
The Punjab and Haryana High Court headed by a single judge bench in the recently decided judgment of Gulza Kumari v. State of Punjab wherein both the petitioners approached the court to protect them from their relatives who were against the live-in relationship. The judge HS Madan adjudged that “As a matter of fact, the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable and no protection order in the petition can be passed.” The court further said that due to this reason no protection could be granted to them under Article 21.
It is important to note that this is not the first case decided by the hon’ble court on live-in relationships. However, it certainly is one of the peculiar ones, where the court said that no protection could be granted to the couple residing in a live-in set up. Below are some of the cases mentioned wherein the court (special focus on the judgments of the Punjab and Haryana High Court) has extended protection to the couple.
Divya v. State of Punjab
In a recent case decided by the High Court of Punjab and Haryana on the subject matter of live-in relationships, the court said – “There is no conflict with law in the cases where both the partners have attained the legal age of marriage (18 years for female and 21 years for male) or attained the legal age to have a consensual relationship or a live-in relationship, as the case may be. It is irrelevant, whether or not they perform marriage, since law permits them to marry or choose their partners according to their wishes, regardless of their choice being accepted by the family and/or relatives. However, difficulty arises where they or either of them have/has not attained the legal age of marriage or for consensual relationship and yet, they marry or choose their partner or have a live-in relationship and approach courts for orders to protect their life and liberty”.
Anju And Another v. State of Haryana and Others
The Supreme Court of India in a case of Joseph Shine v. Union of India, wherein the Hon’ble Supreme Court has held that even if boy and girl are not competent to enter into wedlock, they have right to live together even 1 of 2 outside wedlock. It would not be out of place to mention that ‘live-in- relationship’ is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.
Sukhwinder Kaur v. Narinder Kaur & Ors
The progressive law in D.Velusamy v. D.Patchaiammal, would not apply in this case, a case which was cited at the hearing. The Supreme Court held that a live-in relationship is not in the nature of marriage but deserves certain protections.
There are a number of cases decided by the court on the above aspect. One of the most important cases where the court applied the liberal approach has been Joseph Shine and Indra Sarma v. V.K.V. Sarma. The judgment of the court in the present case represents the application of an idealistic approach, even though the comments of the judge have been so, it is not right that the protection was granted to the couple. It is hopeful that the case would be challenged before a division bench of the High Court and the decision would be struck down.
As seen above, both the theories stood the test of time, however, the author is more inclined towards the pragmatic approach. Idealist approach surrounds itself with society which certainly at times yields catastrophic results. The lives of the LGBTQI community were hampered because jurists in India catered to the needs and expectations of the society instead of working towards individual autonomy and freedom, where on one hand the author believes that morality must guide the law system in any country. It cannot be denied that morality is a subjective and relative matter, one person’s idea of morality may be completely different from someone else’s morality. Therefore, to reduce the existence of someone into illegality merely based on popular opinion goes against the principles of natural justice and doesn’t celebrate the idea of diversity.
 Kelsen, Hans, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy.” JSTOR, 1937, www.jstor.org/stable/2989300 (27 Jan. 2021).
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 Wolfenden, Report of the Committee on Homosexual Offences and Prostitution, 247, 1957 (UK).
 “Delvin, The Enforcement Of Morals, 9, (Oxford University Press, 1965).”
 “C. L. Ten, Mill On Liberty 66,67 (Oxford: Clarendon Press, 1980)”.
 Hart, Law, Liberty And Morality,20 (Stanford University Press, 1963).
 “Barbara Wooton, Crime And The Criminal Law: Reflections Of a Magistrate And Social Scientist, s. 31-64 (2nd ed. 1981).
 Wolfenden Committee Report on Homosexuality and Prostitution, s. 61.
 AIR 1991 ALL 120.
 2004 CrLJ 310.
 Naz Foundation v. Government of NCT Delhi; WP(C) No.7455/2001.
 AIR 2018 SC 4321.
 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
 CRWP No.4199 of 2021 (O&M).
 CRWP-7911 of 2020 (O&M).
 CRWP No.6007 of 2020
 2018 (2) RCR (Civil) 899
 RSA No.871 of 2017 (O&M)
 AIR 2011 SC 479.
 2013(15) SCC 755
BY SAKSHI RAJAWAT | HIDAYATULLAH NATIONAL LAW UNIVERSITY