This article is written by Vividh Jain, a student of the Institute of Law, NIRMA University. In this article, the author talks about the conflict between morality and sexuality in law on homosexuality, polygamy, prostitution and abortion.
Law and morality have established an intimate link between them. Law and morality are related to each other. Laws exist to satisfy the moral desire of society or we can say that almost all laws are based on moral principles of the society at large. Laws reflect the social, economic, and political relationship between the state and society by determining the rights and duties of every citizen towards other citizens and the state. Law and morality generally influence each other as if law influences the moral principles of society then it would easily be accepted by individuals of that society.
Some laws are made up while considering the moral factors into the mind and some are not. Also, it is not necessary that law influences the morality of all the individuals living in a society, it may favour the moral principles of one group but is completely against the moral principles of another group. If we consider the laws of abortion and homosexuality, many sections of our society would not favour this legislation as these acts of abortion and homosexuality are against their moral principles and if the state enacts these legislations then there is a clash between laws and morality.
Fabrication of a crime
There are many sources by which a crime can be manufactured in society. Here, the moral principles of individual works. If the moral principles clashed with the existing laws then the chances for a crime increases. Suppose in a state, homosexuality is prohibited and at the same time the moral principle of its citizens says that homosexuality should be allowed in their native place, then there is a clash between the moral principles and laws regarding homosexuality. So, to satisfy their sexual desires, they came into an intimate relationship with a person of the same gender and ended with committing an offence that prohibits homosexuality. Now, from this stage the fabrication of crime took place.
Harm principle says that every person should be set free to act according to their will or desire but the act must not be compromised with the desire of other people or cause harm to the other person. Homosexuality has been out from this list as it would not compromise with the liberty of another person. If two persons of the same gender have been attracted to each other then their intimation has not harmed the desire and liberty of other individuals sustain in that society but this case differs when we talk about polygamy. If a man indulges himself in more than one marriage or polygamy then his actions would harm the sentiments and feelings of his wife/wives. But, if we take a look towards the Muslim community, they allow polygamy because the act was registered in their holy book Quraan and according to them, this act of polygamy is not against morality or not comes under the definition of moral wrong.
Moralism defines the personal moral codes of a particular person which directs him on the various stages of his eternal life. A moralist is set free to decide whether his conductor is free to make his own rules and regulations whether they favour the society or is completely against the common moral principles of that society. Christian moralism focuses on moral behaviour to the point that obedience should come before faith and grace. According to them, if a person prays, goes to church, does not lie, steal, cheat or harms others, helping the community, then he reserves his place in heaven and comes under the definition of a good person. Christian moralism is completely against abortion as they treat abortion as a curse on a woman because they consider a child in the womb as a human and almost for everyone in this world, the killing of humans is against morality.
Constitutional rights- sexual rights and morality in India
Article 21 of the Constitution of India talks about the fundamental right to protection of right and personal liberty. The Supreme Court in the case of Justice KS Puttaswamy (Retd.) v. Union of India has declared that the right to privacy comes under the ambit of Article 21 of our constitution as a fundamental right of Indian citizens. Here, the right to privacy stood against Section 377 of the Indian Penal Code, 1860 as this section stands between the morals and laws of homosexuals. The Delhi High Court in the year 2009, ruled that Section 377 of the Indian Penal Code, 1860 which criminalizes oral, anal and consensual same-gender sex was unconstitutional and this judgement decriminalizes homosexuality in India. However, in 2013 a petition was filed in Supreme Court against the struck down of Section 377 and Supreme Court overruled the Delhi High Court verdict and recriminalize homosexuality in India. Later on, in the year 2018, Supreme Court in case of Navtej Singh Johar vs. Union of India, decriminalize homosexuality by struck down Section 377 of the Indian Penal Code, 1861 up to some extent and establish a link between morality and law.
Life under Section 377
Before 2009, LGBTQ persons were discriminated against based on their sexual choices. No one was there to recognize their rights. Government officials, hospital staff, police, and everyone openly discriminate against them. They all were deprived of education, health, job, religion, race, caste, sex, violence, endeavour, poverty, etc. Section 377 has also hampered HIV/AIDS-related public health efforts for years to respond to the growing epidemic, undertake high-risk activities, and make it extremely difficult to provide information for basic human services. A Delhi based organization named Naz foundation took a step against the harassment and discrimination faced by the LGBT community by filing a petition in Delhi High Court. The Delhi Court in its landmark judgement of Naz Foundation v. NCT of Delhi struck down Section 377 of the Indian Penal Code, 1860 because it constitutes against the privacy and personal liberty of LGBT population and decriminalises homosexuality by holding Section 377 unconstitutional.
Impact of 2009 ruling
The 2009 ruling turned out to be a watershed moment in the life of both the LGBTI community and India’s constitutional democracy when the High Court effectively suppressed constitutional rights and freedoms over social fancies and whims. One of the most powerful reasoning behind the judgment was the idea of constitutional morality, which was far different from the idea of social morality or the morality preferred by the majority of the population. After the 2009 ruling, the LGBT community started getting recognition and the government started making policies for the rights and the upliftment of the LGBT population. Various human rights organizations started public movements for making a healthy environment for the LGBT community and under which the social acceptability for LGBT community rises in the society. Policies providing social, political, and economic benefits to LGBT populations started being enacted and police were instructed to report the cases related to harassment, discrimination, and blackmailing on the LGBT community. Later on, in the year 2013, a division bench of the Supreme Court in case of Suresh Kumar Koushal v. Naz Foundation recriminalize homosexuality and overruled the previous ruling given by the Delhi Court in 2009.
The conflict between claims of morality and law
When a person indulges in more than one marriage agreement or having more than one spouse then the act constituted by that person is known as polygamy. Polygamy can be done by any man having more than one wife or by any woman having more than one husband. Section 494 of the Indian Penal Code, 1861 prohibits bigamy and held polygamous marriage as null and void. If a man indulges himself in more than one marriage or polygamy then his actions would harm the sentiments and feelings of his wife/wives. In India, polygamy is strictly banned and is a punishable offence. But, if we take a look towards the Muslim community, they allow polygamy because the act was registered in their holy book Quraan. If a person follows Islam, then he is entitled to marry four wives but the rule is not the same for women following Islam. According to them, this act of polygamy is not against morality or not comes under the definition of moral wrong.
The abortion legislation
The most painful death in this world is burning alive, after that, an act of giving birth to a child comes as the second most painful act. Abortion refers to the termination of pregnancy by destroying foetus or embryo outside the woman’s body. Morals and laws clash when the topic of abortion arises. Various religions treat the practice of abortion as a social evil and labelled it as an act against humanity and morality. Christianism is completely against the act of abortion as they treat abortion as a curse on a woman because they consider a child in the womb as a human and for them the killing of humans or a foetus inside womb is against the morality. Hinduism and Buddhism to chastise the practice of abortion. They believe that life begins with conception and this act of abortion itself ends the life of the upcoming generation. Jainism believes in ‘live and lets the others live’ so they are also completely against abortion. In India, the Medical Termination of Pregnancy Act, 1971 deals with the statutory provisions related to the termination of pregnancy in various circumstances. This law/act clashes with the moral principles of various citizen but the enactment of this legislation is necessary to prevent women of over country from unwanted pregnancies and also to support rape victims.
Prostitution is one of the world’s oldest profession in which a person provides sexual services in exchange for money. This profession of selling one’s body for money is quite ancient and was even followed in India. Various European countries like the Netherlands, Germany, etc. decriminalize this profession while in some countries like India, Prostitution is still prohibited. The one who practices this profession also considers it against morality and does not want to introduce this profession to the next generation. Here in India, the law and morality established an intimate relationship between them but in other countries, the clash between law and morality still exists. Prostitution is a commercial activity as it is profitable and supports the livelihoods of millions of prostitutes who would otherwise be unemployed. Prostitutes have legal status in very few countries and most parts of the world, prostitutes do not enjoy the same rights and are oppressed and humiliated. Therefore, this gap between public morality and the law has not yet been effectively overcome.
Laws on homosexuality
Homosexuality refers to sexually attract and affectionate towards the person of the same sex. Bible condemns those who practise homosexuality. Not only the Bible, but various religions also oppose and chastise homosexuality on the grounds of immorality, sociality, and against the order of nature. They belives that homosexuality is against mankind, divine, purity, reality, and genetics. Previously in India, the same-sex orientation was prohibited but the ruling in 2018 comes where the Supreme Court of India decriminalize homosexuality by struck down Section 377 of the Indian Penal Code, 1861 up to some extent and establish a link between morality and law. But still, the legal status of homosexuality is melancholy. Even in the most modern era of humanity, very few legal systems have accepted close relationships between people of the same sex.
What does the future law look like?
LGBT activists now freely live in a society with pride, liberty, dignity, freedom and the state also recognizes their rights and duties. Every politician considers them as a legal citizen and to fulfil his vote bank, he starts to convince them with policies which ultimately support the LGBTQ population. Various NGOs have been established to fight against the discrimination and harassment faced by the LGBTQ community in various public places. Now, they got their true identity as citizens of a developed nation.
The ultimate result of this discussion lies within the hand of the state or legislature who enact the laws. The state must enact those laws that will uplift the moral standards of the society and must favour the moral principles of each individual who were the participants of that society. The law has to guarantee the independence and freedom of its citizens. Also, the society and medical community must offer love and moral support to women with unplanned pregnancies and help these pregnant women in finding the empathetic alternatives to abortion and must show some respect toward LGBTQ activists. Prohibitive laws in India have failed because people’s moral conscience has not been in favour of such laws. So, what legislators do is to codify such laws that establish the link with the basic moral principles of the public and try to explain the intention, reasoning and applicability of those laws.
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