Alliance University - Central Campus, Chikkahadage Cross Chandapura-
Anekal, Main Road, Bengaluru, Karnataka 562106
Subject Name - Law of Crimes
Subject code- CLAW 2006
CRIMINAL LAW AND MORALITY
Submitted by: - Submitted to: -
Khushi Tripathi ‘A’ 2022BBLH07ASL044 Prof. Amit
Bhaskar
Introduction-
“When law and morality contradict each other, the citizen has the cruel
alternative of either losing his moral sense or losing his respect for the law.”1
-Frederic Bastiat
Values are the basis of the law. Legislative action and judicial decisions do not
take place in a vacuum. Their compass is set by the principles that society
espouses. The cultural norms on which legislators and judges build their legal
notions are values. Values are more than simply fictitious tools for legislation.
They are applied to judge proposed legislation. The essential element of the
legal system, which also involves judgement and free will, is values. As society
advances, these laws could change on their own. Values and laws change on a
regular basis. In such a situation, the viewpoints of judges and lawmakers
would also alter.
To understand how the terms "law" and "morality" connect to one another,
one must first understand what the phrases "law" and "morality" mean. The
law cannot be understood in its entirety or read literally. According to the
natural law school, "morality" serves as the bridge connecting ethics and the
law. It was more preoccupied with what ought to be the law than with what is
really the law. They argued that while interpreting the law, one should take into
account religion, morality, liberty, justice, and conscience in addition to the law
itself. Contrarily, positivism highlights that only our own experiences have the
potential to influence the law. Morality and the law have absolutely nothing to
do with one another. Morality and the law have absolutely nothing to do with
one another. The legislation serves as a symbol of the Sovereign's entrance and
may be enforced through fines.2
Morality-
1
Tharuka Hettiarachchi, Relation Between Law and Morality, [Link]
and-morality/ (Last Visited- 14/09/2023)
2
Tharuka Hettiarachchi, Relation Between Law and Morality, [Link]
and-morality/ (Last Visited- 14/09/2023)
A set of values known as morality makes it possible for people to coexist in
groups. It is what societies consider to be "correct" and "acceptable."
Sometimes acting morally requires putting one's own interests on hold to
benefit society.
Plato defines morality as “An efficient harmony of the whole achieved through
the most effective use of the parts. Evil is nothing more than the parts of man
or the parts of the state that are out of balance”.3
Historical origin of morality-
The idea of natural rights, developed by the ancient Greeks, provided
theoretical moral support for the rule of law. Greek ethical theory was used in
Rome during the classical era. Roman lawyers endeavoured to define and
ascertain the meaning of the natural law. They offered us an idealised version
of Roman legal principles along with an ethical philosophical natural law.
Natural law was given a theological underpinning throughout the Middle Ages,
and Christian virtues were seen as the cornerstone of law.4 In the seventeenth
and eighteenth centuries, natural law doctrines that had a logical moral
grounding gained a lot of traction.
The emergence of the court of chancery and the growth of equity in England
led to the liberalisation of the general views of good and evil held by
chancellors as well as the ethical principles found in the sixteenth-century
casuist literature.5 The philosophical concepts of legal writers regarding the law
of nature were used in a similar manner in Continental Europe in the
seventeenth and eighteenth century. As a result, moral obligation became legal
obligation. As the moral unit, the individual human became the legal unit. The
assumption that a moral principle should also be a legal requirement led to the
evolution of moral principles into legal principles. It unequivocally
demonstrates how, in all legal systems around the world, a moral value first
evolved into an equitable principle and subsequently became a rule of law.
Kant substituted a metaphysical natural law for the logical foundation at the
end of the eighteenth century in order to show the need of the existing legal
3
Stanford Encyclopedia of Philosophy, Plato’s Ethics: an Overview, (Last Visited- 13/09/23),
[Link]
%20philosophers,skills%20needed%20to%20attai%20it.
4
See Pound, Interpretation of Legal History 98-99 (1967).
5
Day v. Slaughter, Prec Ch. 16 (1690); Fursakar v. Robinson, Prec. Ch. 475 (1717); Chaman v. Gibson, 3 Bros. C-
C 229 (1791). For details see, Roscoe Pound, Law, and Morals 31-9 (The Mc. Nair Lectures, 1969).
system. The analytical jurists contended that since the law is a set of rules
imposed or upheld by the sovereign, it does not require a foundation. Positive
law had been pitted against a body of ideal moral law and natural law up until
the time of Kant. Instead, Kant positioned the unchanging standards by which
law and lawmaking must be assessed against positive law.6 According to Kant,
positive law and doctrines are thought to be the result of human intelligence.
The basic source of moral commandments, however, cannot be located in the
individuals' independent reason, according to a study of the historical
development of moral notions. They were born out of organised organisations'
intense desire to establish social conditions that were tolerable.7
Crime-
Crime according to different jurists can be defined as-
According to Bentham, “Offences are whatever the legislature has prohibited
for good or for bad reasons.”8
According to Austin, “a wrong which is pursued at the discretion of the injured
party and his representatives is a civil injury; a wrong which is pursued by the
sovereign, or his subordinates is a crime.”9
According to Paul W. Tappen, “an intentional act or omission in the violation of
criminal law, without justification and sanctioned by the law as felony or
misdemeanour.”10
A crime is an illegal act that is sanctioned by the government or another legal
body. An act that is harmful to the community, society, or state is considered a
crime or an offence. The law forbuuids and penalises such behaviour.
The components of a crime should be of a legal nature (have to do with the
law), harm (to someone or something), concurrence (state of mind and human
conduct), mens rea (state of mind and guilty), Actus Reus (human conduct),
causation (human activity must cause harm), harm (to someone or something
6
E.g., Dr. Johnson said that the law is the last result of human wisdom acting upon human experience for the
benefit of the public; Boswell, Life of Johnson II, 258 (Croker ed. 1859).
7
B.F. Skinner, Beyond Freedom and Dignity 20(1971).
8
Subhashini Parihar, Definition of Crimes and Its Essential Elements- Indian Penal Code,
[Link]
%20Renowned%20Jurists,-According%20to%20Bentham&text=According%20to%20Austin%2C
%20%E2%80%9Ca%20wrong,his%20subordinates%20is%20a%20crime.%E2%80%9D (Last Visited- 13/09/2023)
9
Id.
10
Id.
else), Punishment. The crucial component of a crime-worthy mental state. A
person is not liable if it is not present.
Stages of crime-
1) The initial phase of a crime is the intention.
2) The second step of crime is preparation.
3) An attempt is made in the third stage. Following the creation of the
plan, it is a direct movement of an Act towards execution of an Act.
4) The achievement is the fourth stage.
Utilitarianism-
Deeds are morally correct if they tend to bring about happiness or pleasure,
and morally incorrect if they tend to bring about pain or suffering, according to
an ethical theory.
The purpose of utilitarianism is to provide an actionable answer to the
question "What ought a person to do?" The correct reaction is to act in such a
way that one maximises happiness or pleasure while minimising sadness or
suffering.
Utilitarianism in political theory is a moral and ethical philosophy. Although it
has origins in ancient Greek philosophy, Jeremy Bentham and J.S. Mill's work is
mostly responsible for its rise to fame. This concept was very important
throughout the first two decades of the nineteenth century. The optimal
maximal happiness to the largest number of members is the central concept of
utilitarianism. Today, practically all countries conduct their political, economic,
and social affairs in accordance with the utilitarian idea.
He thought punishment was improper. He does support punishment, though, if
it makes the happiest people.
Morality in criminal law-
The idea that the criminal justice system does not regulate morality or that it
does not punish sin is not yet axiomatic. The reduction of criminal activity to a
level where society can bear the negative impacts of crime without
endangering its stability becomes the goal of criminal law. To put it another
way, the purpose of the criminal law is to make sure that socially damaging
activities cause as little harm to society as feasible.11
Because one is ethically obligated to uphold the positive rules of society, it may
be immoral to perform an act that is punishable by law. This is known as the a
posteriori relationship between morality and crimes. Even this might be called
into question under certain conditions, such as when one's moral principles are
at odds with a law system that is out of date. However, I believe it is legitimate
to state that the criminal code is not, and should not be, a moral code with
associated criminal penalties.
Since the criminal law solely addresses acts, it should be noted that a person's
moral standing, if one may use that term, is not the focus of criminal penalties.
Being a drug addict, a prostitute, a liar, a sadist, a prodigal, or a member of any
other apparently morally repugnant group is not a crime. A criminal offence
must have been committed in order for one to be classified as a murderer or
thief, although even that offence may have been expiated. Perhaps the
exceptions to this rule are dangerous sexual offenders and habitual offenders,
but once again, these criteria must be met in order to be defined.
Since the criminal law solely addresses acts, it should be noted that a person's
moral standing, if one may use that term, is not the focus of criminal penalties.
Being a drug addict, a prostitute, a liar, a sadist, a prodigal, or a member of any
other apparently morally repugnant group is not a crime. A criminal offence
must have been committed in order for one to be classified as a murderer or
thief, although even that offence may have been expiated. Perhaps the
exceptions to this rule are dangerous sexual offenders and habitual offenders,
but once again, these criteria must be met to be defined.
Juridically, sanctions against homosexuals, drug addicts, prostitutes, and other
offenders are therefore not based on who they are but rather what they do. On
this level, it is acceptable to group people into groups based on their various
activities without those groups necessarily having moral implications.
11
Alan W. Mewett, "The Proper Scope and Function of the Criminal Law" (1960), 3 Criminal Law Quarterly 392.
Even at the moral level, a person is judged on the basis of his actions rather
than just his character when determining whether he is moral or immoral.
A drug addict who abstains from using drugs is, if anything, very virtuous; a
sadist or homophobe who abstains from offensive behaviour is likely to be
pitied rather than condemned, even by the simple-minded man on the street.
To label someone as immoral is to claim that they perform immoral behaviours.
Prostitution itself is not a crime under the Indian Penal Code, but violations of
the Immoral Traffic (Prevention) Act, 1956,12 include solicitation, pimping,
maintaining brothels, and engaging in sexual exploitation. The Immoral
Trafficking Act (1956) defines "prostitution" as the sexual exploitation or abuse
of any individual for any commercial purpose under Section 2(f). Although the
Indian Penal Code's Sections 366A, 366B, and 370A successively deal with the
punishment for the crimes of procuring a minor girl, bringing a female into the
country for sex, and exploitation of a trafficked person.
Relationship between Law and Morality with regards to Indian Penal Code
It is undoubtedly true that morality and law are distinct from one another, yet
this distinction cannot be said to be absolute because morality in certain ways
influences law to a greater or lesser amount. The idea that law has emerged
from the ruins of morality is true. In fact, the Indian Constitution itself provides
a clear illustration of this. Our Fundamental Rights, which are found in Part 3
Articles 12 to 35, and the Directive Principles of State Policy, which are found in
Part 4 Articles 36 to 51, are both heavily based on the idea of morality. As a
result, morality has been translated into laws and is upheld by each and every
Indian citizen.13
Morality has had a distinct place in law since the inception of the Indian Penal
Code, as it is a latent ingredient in practically every provision. To establish
criminal responsibility, two key elements are required:'mens rea' and 'actus
reus'. Mens rea denotes wrong or mala fide intention or basically a guilty mind,
and intention means a conscious exercise of a person's mental powers to
commit an act. The legal maxim in this instance states that if an act is
12
Legislative Department, [Link]
prevention-act-1956 (Last Visited- 13/09/2023)
13
Fundamental Rights, Directive Principles and Fundamental Duties, Commission on "Enlargement of
Fundamental Rights" and "Effectuation of Fundamental
Duties", [Link] (Last Visited- 13/09/2023)
performed without the goal of committing a crime, it is not illegal. Therefore,
malice intent is used to execute wrongful behaviour, and wrongful conduct may
only occur when we commit an immoral act. Therefore, morality and law are
intertwined in this situation since incorrect purpose invariably implies the idea
of performing an immoral act.
There are numerous examples that can be used to demonstrate how morality
ideas have found room in Indian law. If we look at the IPC's introductory
sections, we will see that the word "intention" is employed in a variety of
contexts. A wrongful conduct coupled with a common goal is also included in
Section 34,14 which states that "Acts done by several persons in furtherance of
a common intention." As a result, an immoral act coupled with an immoral
intention is illegal. 'Being done with criminal knowledge or intention' is another
phrase used in Section 35.15 As crimes under various Sections of the IPC, theft,
rape, culpable homicide, and other actions are also considered immoral when
they are committed. Every section's goal is crucial, and the morality concept is
crucial as well. Another illustration of this is Section 52 of the IPC, which
defines "Good Faith." The term "good faith" refers to any action taken in good
faith and for a good reason. If reasonable care and attention are given, one
who takes such action is thought to be of moral character.
Overall, it can be said that morality and the Indian Penal Code have close ties
and are fundamental components of Indian law. In addition, morality has a
significant impact on Indian law because it serves as the justification for making
the entire class of immoral conduct illegal.
Where Do Morality and Law Part Company?
There is no question that morality has a significant influence on law, and there
are some actions that are social wrongs while also being illegal under the law,
but there are also situations where certain moral standards are not upheld by
the law, and there is no formal organisation in place to oversee compliance
with the law, and there is no legal sanction if a member of society does not
follow those standards, such as if you are wealthy and do not help the poor, the
law will not punish you. In this case, morality and legality disagree.
14
Meera Emmanuel, Common intention under Section 34 IPC cannot be confused with similar intention,
Calcutta HC (Dec.29, 2019, 12:49 PM), [Link]
section-34-ipc-cannot-be-confused-with-similar-intention-calcutta-hc (Last Visited- 13/09/2023)
15
Pinki Sarkar, Section 35 of Indian Penal Code, 1860-
Explained, [Link]
118540 (Last Visited- 13/09/2023)
Law and morality also vary when regulations that are seen as immoral are
implemented as legal by law, that is, when rules control behaviours that are
improper in accordance with morality principles but are not subject to legal
punishment. The following are some examples of the same:
1) Homosexuality laws- Homosexuality laws have changed over time and
are currently undergoing modification. The phrase "God created Adam
and Eve, not Adam and Steve"16, which neatly encapsulates how
important the moral stance on the homosexuality issue is in relation to
the morality created along religious lines. If we discuss morality not just
in the context of India but in the context of the entire world, we will
notice that some of the same attitudes are prevalent everywhere. In the
same way that the church has traditionally opposed homosexuality in
general, the Bible also teaches that a man cannot lie to another man in
the same manner that he lies to a woman.17 In plain English,
homosexuality is the persistent propensity to be attracted to individuals
of the same sex, either in general or exclusively. It also denotes
membership in a particular group of people who have the same sexual
orientation.18 The only thing that has changed about homosexuality is
that people are talking about it more openly now. However, religious
authorities continue to oppose it on the grounds that it is immoral and
against nature. Homosexuality has been a part of society since the
beginning of time. Many religions around the world hold the belief that
individuals who disobey this natural law find themselves at odds with the
Divine. It is alleged that homosexuality is terribly bad and "unnatural." In
some civilizations, homosexuals are also referred to be non-religious,
and they are marginalised and left in small, isolating spaces. Studies
citing a homosexual "gene" have also been released, but these claims
are said to be biassed because "gay rights" activists have presented three
studies in support of this claim: Hamer's X-Chromosome research,
Levay's study of the hypothalamus, and Bailey and Pillards' study of
identical twins. Since the researchers on all of these studies were
homosexual themselves, it is assumed that they would be biassed.
16
Victoria Clarke, What about the children? Arguments against lesbian and gay parenting, Women‘s Studies
International Forums, 555-570 (2001)
17
Tennessee Nashville, The Book of Discipline of The United Methodist Church 161G (The United Methodist
Publishing House 2010)
18
Anuradha Parasar, Homosexuality in India - The Invisible Conflict,
[Link]
%20The%20invisible%[Link] (Last Visited- 13/09/2023)
However, some studies take an entirely different stance, thus there isn't
any concrete proof to support the claim that a person's homosexual
behaviour is caused by their genes. It is frequently believed that a
homosexual gene would never cause someone's morals to change to
those of a homosexual. And society asserts that homosexuality cannot
be morally justified by merely pointing to social or biological factors.
However, change is inevitable throughout time, and as such, it also occurred in
this instance. A person who engages in voluntary carnal intercourse with a
woman, a man, or an animal against the laws of nature will be punished,
according to Section 377 of the IPC, which was written in 1860. IPC 377
classifies as a crime any penetrative intercourse that is unnatural and doesn't
result in reproduction, hence homosexual, bisexual, and other sexual
orientations were all viewed as crimes. However, when the LGBTQ (lesbian, gay,
bisexual, and transgender) community took to the streets to demand their
rights, recommendations were made to examine Section 377.19 Due to the
intense pressure brought on by this action, the Supreme Court instructed the
High Court to investigate the constitutionality of Section 377 in February 2006.
Many organisations stepped out to speak out against Section 377. The Naz
Foundation and 12 other organisations filed a petition, and the National Aids
Control Organisation urged that Section 377 be repealed because it was
impeding effective health intervention.20 Famous author Vikram Seth also
demanded the repeal of Section 377 in a letter that he called "cruel." The letter
received a lot of support. The Law Commission of India's 172nd report also
called for the decriminalisation of homosexuality. Finally, Section 377 of the IPC
was eased and some of its provisions were declared unlawful by a five-judge
constitutional panel of the Supreme Court of India on September 6, 2018.
Through the example of homosexuality laws, it is pretty clear that over the
years, moral principles have waned as mindsets have changed, causing law to
predominate over morality. Or, to put it another way, as morality changes, so
does the law.
19
Niall McCarthy, The Legal Status of Homosexuality Worldwide (Jun. 28, 2019, 06:47 AM),
[Link]
infographic/amp/ (Last Visited- 13/09/2023)
20
Anshumaan, Law & Morality Debate in the Context of Suicide & Homosexuality,
[Link]
[Link] (Last Visited- 13/09/2023)
2) Legalization of Abortion- Abortion is the deliberate ending of a
pregnancy or the killing of the embryo or foetus before they are able to
survive outside of the womb.21 Abortion has received a great deal of
criticism throughout history. Legalising abortions and giving women the
choice to have children or not is a contentious moral and legal issue. If
we consider this subject from a universal standpoint, holy texts like the
Bible vehemently oppose and condemn the actual act of abortion and
describe it as a repugnant concept. According to Roman Catholic beliefs,
abortion seriously goes against morality. According to Christianity, it is
incredibly cruel to kill unborn children. And now, if we examine what
Hinduism, the oldest religion in the world, has to say about abortion, we
find that it refers to the procedure as a cruel and detested act. Such
decisions are founded on the alleged precepts of the so-called God.
Therefore, abortion is a significant ethical dilemma for most world
religions.
But there is also another side to the argument, one that looks at the
issue of abortion from the standpoint of reason and justice in terms of
the mother's rights. The proponents on this side of the argument have
been very supportive of a woman's right to her body, namely her right to
an abortion based on her own free will, as well as her rights to freedom
and privacy. In the Roe v. Wade22, it was explicitly stated that the right to
an abortion falls under the right to privacy and is therefore not
necessarily wrong in all circumstances. A similar statement can be made
about Indian law, which allows for pregnancy termination within 24
weeks in exceptional circumstances like rape, etc.
Contrary to what mortals may claim, abortion cannot be completely
outlawed as a whole, thus the law had to accommodate it, and it did.
21
Anshumaan, Law & Morality Debate in the Context of Suicide & Homosexuality,
[Link]
[Link] (Last Visited- 13/09/2023)
22
Justice Blackmun‘s opinion in Roe v. Wade 410 U.S. 113 (1973),
[Link] (Last
Visited- 13/09/2023)
Conclusion-
According to the preceding debate, the two systems of social control are
morality and the law. Whether it was a legislative or judicial procedure, ethics
and morality were always present. The idea that morality and law must be kept
apart did not apply to the legislative process either. The notion was first
suggested by Holmes J., who said categorically that the law "is the witness and
external deposit of our moral life." Moral issues impact legal rules. Despite the
fact that morality is an important factor in the development of law, judges are
seen to have higher moral standards than politicians. .23 Legislation is usually
the consequence of political will, and politicians are quickly influenced by
public opinion.
In India, the "cash for query" issue has caused severe moral and constitutional
issues. Their participation in the high-profile human trafficking case has once
again affected politicians' moral standards. Judicial law, on the other hand, is
created in the calm setting of justice courts by persons who have been
schooled to keep the balance of justice. As a result, judicial rather than
legislative law is more equitable. The judiciary frequently criticises laws as
being unjust, punitive, and incorrect. During Ramaswamy J's impeachment
trials, however, the MPs in power ignored morality and ethics by using a
political ploy known as abstention to save him from being found guilty. 24
References-
Shambhvi Agarwal, Law and Morality – Inextricable
[Link]
(Last Visited- 13/09/2023)
SCC ONLINE BLOGS [Link]
hc-is-there-any-provision-under-law-which-makes-prostitution-per-se-a-
23
Dicey, Law and Public Opinion in England at 368 (1962).
24
The impeachment motion was brought against Justice Ramaswamy on 10th May 1993. He resigned
subsequently on 13th May 1993
criminal-offence-or-punishes-a-person-for-indulging-into-prostitution-hc-
expounds/ (Last Visited- 13/09/2023)
INDIA TODAY [Link]
prostitution-137902-2011-07-19 (Last Visited- 13/09/2023)
THE HINDU [Link]
virtue-cant-be-raped-for-that-reason-sc/[Link] (Last Visited-
13/09/2023)
The Economic Times [Link]
and-nation/even-sex-workers-have-right-to-refuse-supreme-court/
articleshow/[Link]?from=mdr (Last Visited- 13/09/2023)
A Raghunadha Reddy, Notes and Comments: Role of Morality in Law-Making: A
Critical Study, 49 JILI (2007) 194,
[Link]
9000249248 (Last Visited- 13/09/2023)
Alan W. Mewett, Morality and Criminal Law, The University of Toronto Law
Journal, Vol. 14, No. 2 (1962), pp. 213-228 (16 pages)
[Link] , [Link]
Richard C. Fuller, Morals and the Criminal Law, Journal of Criminal Law
Criminology, Vol. 32, No. 6 (1942), pp. 624-630 (7 pages),
[Link]
article=3103&context=jclc
