Introduction:
Law and morality are both related to each other and cannot be separated from one another. According to Oxford Law Dictionary “law” refers to the system of rules which is followed by country or community and is responsible for regulating the actions of its citizens and is enforced by the imposition of penalties. While “morality” is defined as a difference of intentions, decisions and actions between those that are seen as good and evil.
Laws are present in society to satisfy the moral needs of the society. Law determines the rights and duties which every citizen is obligated to follow. Both law and morality influence each other.
Laws are made by considering the morality of the society in mind, however, often at times, the morality of individuals might differ from each other. Sometimes the law may favour the morality of a particular group in the society while ignoring the morality of some other groups. This is when the conflict between law and morality arises.
Where Conflicting Areas are Legal or Illegal
- Prostitution- It refers to the profession of providing sexual services in exchange for money. It is one of the oldest professions in the world and has been prevalent in India since ancient times. It has been legalized in many countries like Germany, Netherlands etc, while in India it is still considered to be illegal. This profession is largely considered to be against morality by the general public and even by the people who practice such professions. Prostitutes are generally very oppressed and do not enjoy the same rights and are often subjected to humiliation. Thus there is a conflict of interest between morality and law.
- Homosexuality– It refers to the people who are sexually attracted to a person of the same gender. In India and many other countries, there are many people belonging to different religious and cultural backgrounds who are against it. According to these people, it is immoral and against the nature to practice such acts. In India homosexuality has been recently decriminalized in 2018, where the supreme court struck down section 377 of the Indian Penal Code, 1861.
- Polygamy- It refers to the practice where a person is married to more than one person at a particular point of time. In India, it is prohibited and is considered as a punishable offence. Section 494 of IPC deals with the practice of polygamy and declares this practice as null and void. It is a practice which is generally practiced in the Muslim community where the males are permitted to have four wives however it is not the same for women. In the Muslim community, it is not considered against the morality of the society and is a common practice.
- Abortion- It refers to the practice where the pregnancy of a woman is terminated by the removal of the fetus from the women’s body. This practice is widely debated both in India and abroad. In many cultural and religious sections of the society it is considered to be evil and it is often equated as committing a murder. While under law termination of pregnancy is permitted under certain circumstances. Thus, this is where conflict arises between the morality of the general public and the law.[1]
Laws Dealing with Sexual Rights-
The Constitution of India guarantees its citizens the right to privacy and personal liberty under Article 21. In the case of Justice K.S. Puttaswamy vs. Union of India it was decided that the right to privacy is guaranteed under the constitution, which created a conflict between the Section 377 of IPC which forbids and criminalizes any sexual activity between persons of the same gender.
There has been a lot of debate regarding this topic and throughout the year’s various judgements have been passed regarding this issue. In 2013 The High Court of Delhi struck down this article claiming it to be unconstitutional, however, in 2013 The Supreme Court of India overruled its judgement and recriminalized the act of homosexuality. Recently in 2018, In the case of Navtej Singh Johar vs. Union of India, the Supreme Court decriminalized homosexuality by striking down Section 377.
Impact of 2009 ruling
Before the 2009 verdict of the High Court, the LGBTQ community was openly discriminated by the society. They were subjected to discrimination and were deprived of participating in activities which are considered to be essential in order to read a normal life which includes getting an education, participating in various religious practices etc.
The 2009 verdict changed the lives of the LGBTQ community and was seen as a monumental moment in the constitution of India. It uplifted their community by giving it recognition and laid down various policies to protect them and their identities.[2]
Different Thoughts on Morality-
What Constitutes a Crime
Crime can arise in society due to various factors. It can occur when the moral beliefs of an individual clash with the existing established laws of society. For example, in a society where the law views homosexuality as a crime but the moral views of the people do not consider it as a crime, a conflict of interest arises between the laws of the state and the morals of the people, this is often referred to as fabrication of a crime.
Harm Principle
According to this principle, a person is free to act on his desire but any such act should not be at the stake of the desire of others. So following this principle homosexuality should not be considered as illegal as it does not harm anyone or get in the way of anyone’s desire. In the case of polygamy however it affects the feelings and desires of another person thus, it should be considered as immoral.
Christian Moralism
Moralism refers to the moral ethics which a person believes in and tries to live by. It focuses on the moral ethics of a person and it believes that obedience should come before faith and grace. It is of the view that if a person wishes to ascend to heaven after death he should follow the moral code of Christianity by praying to god, going to church regularly, abstaining from lying and cheating and helping its community. It stands completely against the practice of abortion as it considers a fetus as a living human being with a soul and equates it to the killing of a person.[3]
Case Laws
1. Naz Foundation vs. Govt. NCT of Delhi,2019-
In this case, a two-judge bench of The Delhi High Court held that the consensual act of sex between two adults of same-sex is a violation of fundamental rights of the person which are guaranteed by the constitution. It was held by the court that Section 377 of IPC violates the right to privacy and dignity laid down under article 21 and it also violated the guarantee of equality under Article 14 of the constitution. This judgement was later overturned by the Supreme Court of India in 2013, which was later again overruled in 2018 by a five-judge bench. [4]
2. Navtej Singh Johar vs Union of India,2018-
In this case, the Naz Foundation Trust challenged the constitutionality of Section 377 of the IPC which termed the sexual intercourse between two consenting adults of the same sex as “unnatural” and made it a punishable offence. It stated that Section 377 represented an outdated understanding of sex, which was named a mean to procreate life and that the law should evolve itself with society. It also held that this section was in violation Articles 14, 15, 19, 21 of the constitution. On the 6th of September, 2018 The Supreme Court of India struck down Section 377 of Indian Penal Code(IPC), in a decision given unanimously by a five-judge bench decriminalizing the consensual sex between two adults of same-sex.[5]
Conclusion
Thus, by the above discussion, it can be concluded that ultimately it is the duty of the state to uplift the morals of the society by enacting laws which are in sync with the views of the society. The law must uphold the constitution principles guaranteed by protecting the personal freedom which is entitled to every citizen. In today’s society, there is a need for legislation to keep up with the evolving needs of the society. In the end, every individual has a different set of morals and it is not possible for the law to satisfy everyone’s desires but the law must try and establish a link between the moral principles of the society.
References:
[1] “Constitutional Rights, Sexual Rights, and ‘Morality’ in India.” OpenDemocracy, www.opendemocracy.net/en/5050/constitutional-rights-sexual-rights-and-morality-in-india/. Accessed 12 Sept. 2020
[2] Keshav. “The Conflict of Sexuality and Morality in Law: Multicultural Visions in a Transnational Age.” Legal Bites – Law And Beyond, 25 Oct. 2017, www.legalbites.in/conflict-sexuality-morality-law-multicultural-visions-transnational-age/. Accessed 12 Sept. 2020.
[3] “Nexus Between Law And Morality.” Www.Legalserviceindia.Com, www.legalserviceindia.com/legal/article-1562-nexus-between-law-and-morality.html. Accessed 12 Se
[4] Naz Foundation vs. Govt. NCT of Delhi,2019
[5] Navtej Singh Johar vs Union of India,2018
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