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Student of Chanakya National Law University, 2009 batch
Law & Morality Debate in the Context Of Suicide & Homosexuality
In ancient times there was no discipline between law and morals. The Hindu jurists in ancient India did not make any distinction between law and morals. However, as time crept by some distinction came into existence. The people not only pointed out the distinction but also dropped in actual practice those rules which were based purely on morals. The doctrine of ‘factum valet’ was recognized. This doctrine means that an act which is in contravention of some moral injunction should be considered valid if accomplished in facts. In its decisions, the Privy Council made a distinction between legal and moral approaches. The same is the case with Supreme Court of India.
There is a distinction between Law and Morals. Vinogradoff writes “Law is clearly distinguishable from morality, the object of law admission of the individual to the will of the organised society while the tendency of morality is to subject the individual to the dictates of his conscience”. Pound observes “Law and morals have a common origin but they diverge in development”. Arndts writes that there are four points of difference between law and morals:
1. In law, man is considered as a person because he has a free will. In morals, we have to do with determining the will towards the good.
2. Law considers man only in so far as he lives in community with others, morals give guide to lead him even if he were alone.
3. Law has to do with acts in so far as they operate externally, morals look to the intention, the inner determination and direction of the will.
4. Law governs the will so far as it may by external coercion, morals seek a free self-determination towards the good.
Thus, we can clearly witness from the above differences between law and morality that law is the external conduct of an individual, it has got nothing to do with the intention, conscience or any other internal accomplishments of a conduct. Morals do not require any external conduct.
Relationship Between Law And Morality With Special Emphasis On Indian Penal Code:
Law maybe different from morality but one can also not ignore the fact that morality can also not be completely detached or divorced from law. It will not be a false statement that law has developed from the ashes of morality. Law at all times and places has in fact been profoundly influenced both by conventional morality and ideas of particular social groups and also by the forms of enlightened moral criticism of those people whose moral horizon has transcended the morality currently accepted. Therefore, if we club all these views in mind then it will be no wrong to say that though law and morality are distinguishable, morality in some way is the integral part of the Law. As a matter of fact, the Indian Constitution is itself an crystal clear example, our Fundamental Rights (Part III Articles 12-35), Directive Principles Of State Policy (Part IV, Articles 36-51), all these are having the base of morality and that morality is moulded and shaped in the form of law so that it can be enforced and implemented by each and every citizens of India. Therefore, with the advent of time the terms like ‘natural Justice’, Justice, Equity, Good Faith and Conscience have infiltrated into the fabric of law.
The special emphasis is been given to the Indian Penal Code, 1860. Morality is the latent ingredient of almost every Section. To establish a criminal liability we need two basic ingredients, namely, ‘mens rea’ and ‘actus reus’, and a basic latin term ‘Actus non facit reum nisi mens sit rea’. Mens rea itself means wrongful intention, mala fide intentions or more precisely the guilty mind. Intentions hereby mean the consequences of the act, or a conscious exercise of mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose. The legal maxim means, an act is not an offence if done without a guilty mind. Here wrongful intentions, mala fide intention means execution of malicious actions, therefore we can also say that execution of an act by wrongful conduct, the conduct can only be wrongful if we are doing an act which is immoral. Wrongful intention definitely means an thought of an immoral task. There are ample number examples itself in the IPC to prove this very statement. The actus reus here means a wrongful act.
If we look at the introductory sections of the IPC we will witness that the word ‘intention’ has been used in various ways. Section 34 “Acts done by several persons in furtherance of a common intention” here also by act the statute means ‘wrongful act’ and that too accompanied with common intention. Therefore, an immoral act accompanied with the immoral intention makes it a crime. Not only Section 34 but Section 35 uses the term ‘being done with criminal knowledge or intention’. IPC has also incorporated the sections for Murder, Culpable homicide, theft, rape etc, is it immoral to do all these ‘acts’? Yes indeed it is immoral to perpetrate such acts. All these Sections are having the term intention though intention is nowhere defined in the IPC but its relevance is of utmost importance and so is the importance of moral and immoral acts. One more example, which would clear the relevance of MORALITY in IPC, is Section 52 which defines ‘Good Faith’. Good Faith here means any act done with bona fide intentions for a bona fide motive, and the person who does so believe it to be of moral character if due care and attention is taken. Hence it will be no wrong to say that morality has a close relation with Indian Penal Code and is a latent ingredient of this very statute.
Suicide And Homosexuality
Suicide: Suicide (self killing) is the act of ending one's own life. It is considered a sin many religions and a crime in some jurisdictions. On the other hand, some cultures have viewed it as an honorable way to exit certain shameful or hopeless situations. On an individual level the meaning of suicide varies across a range of common themes. Simply seeking an end is uncommon. Stated reasons include concepts such as a reunion with the dead, a need for change from an unbearable situation, or a desire to cause pain through causing remorse or grief. Multiple motives are common.
Under the psychological definition of suicide, it is a symptomatic act connected most frequently to the framework of depression and melancholy. It is characterized by the collapse of the ego, along with self-reproach, loss of self-esteem, as well as the inability to tolerate reality. Later psychoanalytic thought on suicide followed the main idea of Sigmund Freud on the subject, that suicide is mainly an act of self punishment.
In India, attempted suicide is a punishable offence as per Section 309 of the IPC. The Law Commission has recommended to the Centre that it repeal the anachronistic law, contained in Section 309 of the Indian Penal Code, making attempt to suicide a punishable offence. The Commission, headed by Justice A.R. Lakshmanan, in its 210th report submitted to the government said “It is unreasonable to inflict punishment upon a person who, on account of family discord, destitution, loss of a dear relation or cause of a like nature, overcomes the instinct of self-preservation and decides to take his own life. In such a case, the unfortunate person deserves sympathy, counseling and appropriate treatment, and certainly not the prison. Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional.”
The bone of contention is that whether this Section is violative of Article 21 of the Indian Constitution or not. This red-hot topic is still a subjective but not a conclusive topic. Section 309 was also held unconstitutional in the Shripati case, moreover in the case of R.C.Cooper vs Union Of India the same judgement was given that the Section 309 is violative of Article 21. In the case of P.Rathinam vs Union Of India a division bench of the Supreme Court supported the HC ruling and struck down Section 309 as unconstitutional on the grounds that it amounted to punishing the victim twice over.
But in the case of Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include "death with dignity" but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In progression of the above, the constitutionality of Section 309 of the I.P.C, which makes "attempt to suicide" an offence, was upheld, overruling the judgment in P. Rathinam's case.
Homosexuality, as a sexual orientation, is defined as "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions primarily to" people of the same sex, it also refers to an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them."
According to section 377 of the Indian Penal Code drafted in 1860, whoever voluntarily has carnal intercourse against the order of nature, with any man, woman or animal shall be punishable with 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. IPC 377 criminalizes any penetrative sex that is unnatural and does not lead to reproduction, thereby criminalizing sexual expression by homosexuals, bisexuals and transsexuals. Suggestions that Section 377 would be reviewed coincided with hundreds of members of the LGBT (lesbian, gay, bisexual, transgendered) community dancing and marching through the streets of five Indian cities to mark the 40th anniversary of the Stonewall uprisings in New York, now a universal symbol of gay resistance to obscurantist oppression. Tracing down public opinion favouring abolishment of section 377 IPC as well as public pressure put on the government for the cause, in February 2006, the Supreme Court ordered the High Court to reconsider the constitutional validity of Section 377. The Naz Foundation petition was supported by Voices Against 377, comprising 12 organisations across the country. Naco (National Aids Control Organisation) demanded the scrapping of Section 377 as it was obstructing effective health interventions. The 172nd report of the Law Commission of India and the recommendations of the National Planning Commission for the 11th Five Year Plan also demanded decriminalisation of homosexuality. In the last two decades, LGBT activism played a major role in creating awareness on the issue. In 2006 writer Vikram Seth released a public letter demanding that the cruel law be struck down. The letter was supported by a large number of signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli Sorabjee, Shyam Benegal, Shubha Mudgal, Arundhati Roy, Aparna Sen, Mrinalini Sarabhai and demanded the scrapping of the brutal law that punitively criminalises romantic love and private, consensual sexual acts between adults of the same sex while being used to systematically persecute, blackmail, arrest and terrorise sexual minorities.
Where SUICIDE is concerned the Supreme Court was of very different opinions altogether for almost a decade because of the judgments in favour of those parties challenged the constitutional validity of the Section 309, but later we witness that the Supreme Court over-ruled their own decisions and said that the provisions are not at all unconstitutional and hence Suicide is an offence.
The British left us redundant and ridiculous piece of legislation 145 years ago. Then it was perceived that a homosexual person had only ‘anal’ intercourse and this propagated the narrow-minded view that sodomy and homosexuality was one and the same. The Section poses before us certain interesting questions like what is ‘natural’ and what the ‘order of nature’ is all about? Section 377 does not define either of the above terms and has left it to the discretion of the courts, leading to a lot of controversy. Further, this section does not differentiate between consensual and coercive sex. In the case of Fazal Rab Choudhary v. State of Bihar, two men were engaged in a consensual relationship. The Supreme Court sentenced the men to six months rigorous imprisonment. What a comical tragedy, how a third party has locus standi to institute a suit against two consenting adults who voluntarily enter into sodomy. This clearly infringes on a person’s right to life and liberty as enshrined in Article 21 of the Constitution of India. In spite of all these moral, social and legal restriction that our society tries to exert, from every corner of the country groups and associations of gay and lesbian people are trying to assert their rights.
To conclude one can say that the Law and Morality are separate but they cannot be completely divorced from each other. And it is this very Morality that is present in the IPC that has impelled the readers, law makers, jurists, lawyers, advocates and judges to ponder over these two sensitive topics namely SUICIDE and HOMOSEXUALITY. We can also say that these are the criteria where the Law clashes with Morality. As Law is dynamic in nature, that is, it changes with the change of time, morality will confront law at one point of time or the other, like in the case of SUICIDE and HOMOSEXUALITY.
1. Jurisprudence & Legal Theory, V.D.Mahajan, Eastern Book Company, 5th Edition, Pg-99
2. P.S.A Pillai’s, Criminal Law, K.I Vibhute, Lexis Nexis Butterworths India, 10th Edition, Pg-60
3. Section 52- “GOOD FAITH” Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.
4. 1987 Cri LJ 743: (1986) 88 Bom LR 589
5. (1970) 2 SCC 298
6. 1994 AIR 1844, 1994 SCC (3) 394
7. 1996 SCC (2) 648
8. WP(C) No.7455/2001, DELHI HIGH COURT; Decision on 2nd July, 2009.
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