Criminal Law And Morality: Through The Lens Of The Indian Judiciary

Charu Atri, Lawyer at High Court of Delhi & LL.M from National Law University, Delhi

Introduction

A wife should be like Goddess “Sita”, who should follow her husband wherever he goes, and a son should be like Lord “Ram” who respects, serves and worships his parents, (asserted by Chhattisgarh and Bombay High Courts) when courts make such morally and culturally loaded remarks, it becomes very important to re examine the principles of criminalization on the fabric of morality. In this regard Hart and Devlin debate deserves special attention.

Hart Devlin debate is centered upon a controversial issue of morality and law i.e. whether morality should be enforced by law or not. This controversy had sparked in the year 1957 after the Wolfenden Report had come. In this report it was proposed that homosexuality and prostitution should be decriminalized from the English Law.1 British Judge Patrick Arthur Devlin had asserted that a recognized public morality is fundamental for the existence of a society. He believed that even if no real harm is caused by the immoral act of an individual still by his very act he weakens the moral bond through which the society remains cemented (known as Legal Moralism). To which British legal philosopher H.L.A. Hart had argued that in a pluralistic society there could be multiple views on the standards of morality. What is moral for one may be immoral for other and therefore he advocated for the idea of minimum of morality for peacefully living in a society. Devlin had also rejected the John Stuart Mill’s Harm Principle, as according to Devlin’s Legal Moralism, it is irrelevant whether harm is caused or not to anyone.

To enforce morality, according to Devlin coercion should be used. But Hart said that this would have undesirable impact on the development of a society resulting into loss of opportunities to challenge the incorrect view of majority. One cannot deny the fact that the sheer abhorrence and disgust on moral and religious grounds in our country, has resulted into many regressive policies of criminalization. Like the criminalization of begging, prostitution, homosexuality, abortion. Due to these laws the disadvantaged groups suffer the most.