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(Analysis of the Wolfenden report vis-à-vis the Hart-Devlin Debate)
The age-old debate regarding the intersection of law and morality and the extent of its influence on the framing of laws of the society has been omnipresent since time immemorial. The two antithetic schools of thoughts namely the positivists and the naturalists have delved into this intersection and given the world a cohort of scholars who have opined and debated profusely. Positivism is a school which asserts that law is simply ‘what it is’ rather than ‘what is ought to be’. It does not judge a law by its merits but by what has been posited by the appropriate authorities. It states that conditions of legal validity are purely mattered of social facts. It has been argued by the Natural School that a putative norm cannot achieve legal validity unless it passes a certain moral requirement of the society. Positive Law must confirm its content to universal morality. Legal Moralism refers to a school of thinkers who believe that there is a nexus between criminal law and moral wrong, and the moral wrongfulness is considered while making decisions related to the criminalization of certain acts.
The Wolfenden Report – Enforcement of moral virtues by law
The Wolfenden Report was published by a Commission headed by Sir John Wolfenden, which was created to conduct a study regarding Sodomy and Prostitution, and whether it was a rationale to declare homosexuality illegal without making premarital sex or certain sexual acts by married couple illegal. It had concluded that the realm of private morality is distinct from the purview and screening of law and in the private sphere the private morality prevails. The report had concluded that the function of law is to preserve public order and decency and protect the citizens by providing enough safeguards by means of laws, to those who are vulnerable to get exploited and corrupted. The Wolfenden Committee was situated in an era where it was believed that law of the state exists not merely to ensure a good life but to guide their actions and thus promote moral virtues. The enforcement of moral virtues was to be achieved by the means of a legal system, and the virtues entail a specific conception of the morality of a certain section of society. It was an attempt by the conservatives to get rid of the overt prostitution and control homosexuality by means of criminalization, and there was a section of Liberals who backed the establishment of a commission for a modernized regulation, rather than imprisonment. The report had changed the framework of morality and had classified private affairs as beyond the scope of public morality, even at the expense of gaining distaste from most of the population. The mortality was defined as applicable for intervention only when there was a need to sustain public standards. It had equated homosexuality with prostitution which was publicly illegal but privately allowed.
The Wolfenden report offered a new framework and a new classification of regulation of morals, which was very influential. For the first time, a distinction was provided between private and public morality. The report essentially meant the decriminalization of private male homosexuality and any other consensual sexual activity to be within the private space and beyond the scope of the law. It paved the way for the Gay Liberation movement in the 1970s and a distinct homosexual identity. The report brought the idea of homosexuality as a reasonable classification, and not unnatural or gross or indecent. There was a broad tendency away from ethical collectivism towards the individualization of decision making, and a focus towards individualism and liberal lawmaking.
Conflicting opinion on the report – The Devlin and Hart Debate
Despite the liberal intent, the report’s consequence resulted in the issuing of the Street Offences Act in 1959, which drove women off the streets by increasing fines and imprisonment. But it led at the same time to a reorganisation of prostitution, resulting in a huge expansion of massage parlours and call-girl rackets, under the control of men.
Lord Devlin had argued against the report and stated that every society needed some fundamental morals which are essential and indispensable. These need to be enforced by any means of sanctions or criminalization and these do not limit themselves to public space. An established morality is as necessary as good government to the welfare of society. Therefore, Society has a right to protect itself against anything that threatens its shared morality The Society must be based on morals or standard conduct of a reasonable man. H.L.A. Hart had argued against this view and had stated in support of the report, that the law’s capacity to intervene private behaviour was restricted and limited. He also claims that Devlin has mistakenly assumed that society is to be identified with its morality and that there is a shared and identifiable public morality.
Reflection of Legal Moralism in Contemporary Society
The ripples of these principles can be felt even today where various factions of the government bodies are being questioned on moral grounds based upon religion, caste or belief. Be it in the case of Section 377 or Female Genital Mutilation or Marital Rape Laws, or cases of Nikah halala, all the pillars of democracy have chosen a stance guided more by the prevailing moral conscience of the society. Acts which have been considered as “right” by the moral standards of the majoritarian society have given the leeway from the tests of logic, rationality or scientific temperament. The Moral standards of the society have caused social discrimination, stigma, taboo to the LGBT community since the British times merely for the reason of being considered “unnatural” by the society regardless of the consent of the individuals. At the same time, inhumane acts which threaten the root of the society such as Female Genital mutilation by the Dawoodi Bohra Community or daily unreported marital rapes which no law prohibits. For time immemorial, these moral standards decided by the privileged, have affected the rationale of the policymakers for their personal and political interests, and as a result, the wrongs have been given legal validity which has rooted them in the society.
The stance portraying the Government as the protector of a basic morality of the nation, which is also bound by the integrity of the nation has also been reiterated and thereby defining the function of laws. However, the diverse differences between the boundaries of the morality of different sections of the society can be felt by one and all across time. It has been understood that the measure of morality behind any action is referred to as relative given the background, time, place and the context. In order to be accustomed to this realisation and have laws which balance the needs of diverse sections of the society, a tolerance of the individual needs to be cultured and should be flexible enough not to deprive another individual of their liberty.
ABOUT THE AUTHOR
Bodhisattwa Majumder is a Penultimate year law student at Maharashtra National Law University.
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