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Legality or morality : an analysis in light of Shashimani Mishra & Another v. State of Madhya Pradesh & Another

December 3, 2021

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This article is written by Priyanshi Soni, from Symbiosis Law School, Noida. This article seeks to discuss the concept of legality and morality and weigh them against each other, in the context of a recent Madhya Pradesh High Court judgment.

Introduction

In this case, a serious issue of legality and morality is discussed, specifically dealing herewith the right to die with dignity. It has been argued that something lawful should also be moral. But looking into intricacies, it is not always so. There are instances where a thing that invokes moral sentiments into the people of a community may not lawfully be a compulsion. Morals cannot be enforced and cannot be forced upon any individual; it is the law that is enforceable and has to be followed by all.

Law versus morality

Concept of morality

Morality means a kind of good conduct and behaviour that is acceptable by society in general. It is a matter of code of conduct to decide right and wrong and is guided by philosophy, religion, or individual conscience. It aligns with ‘ethics’ which is a study of ‘philosophy of morality’. Stanford Encyclopedia of Philosophy defines morality as some code of conduct put forward by society, group, or religion, or is accepted by an individual for her behaviour in a descriptive sense. Normatively, it refers to a code of conduct that, given specified conditions, would be put forward by all rational persons. Morality can be further classified as natural morality or positive morality, private or public morality, theological or totalitarian morality, liberal or utilitarian morality, and so on.

Morality is like a standard of behaviour. While it cannot be denied that it influences the concept of justice, it would be wrong to say that justice and law depend totally on morality. Morality can even vary from situation to situation and place to place, but majorly, the core and aim of morality remain the same.

If we see the origin of preaching and following morals and the righteous path, it comes from the very basic unit of society- the family. At times, there is no logic behind morals, for example, touching others’ feet, but still, these morals prevail widely and are naturally taught to the children of the family too. This is fully one’s private practice which must not be determined by law. Morality can have a negative impact on society.

Morality is a very important element of society that defines our behaviour and actions. But, in today’s times, people relate morality with religion, which is not correct. At times, religions can differ to a great extent and can even lead to wars between different sects. But it is not so as morality is more of a universal thing and even a person who is an atheist can be moral.

Nexus between law and morality

The relationship between law and morality is one of the more enduring issues of jurisprudence. It is not wrong to say that law and morality are the two sides of the same coin. Without one, the other is clueless. What morality does is it influences our behaviour and action whereas we have to follow the laws as they are compulsory for everyone.

Positivists believe that there is a difference between ‘law as it is’ and ‘law as it ought to be’. Positivists also believe that law is not influenced by morality. They acknowledge legality/legal rights over morality, but in the end, it feels insufficient to resolve social problems.

There is a mutual interdependence of law and morality. Law that is without morality will of course lead to corruption, immoral power play, and misuse by those in power and also by common people. Morality can be evaluated as the basis of law to test positive law as an ultimate end of the law in the form of justice.

Law is influenced by both religion and morality, and so there is a sought of interaction between the legal system and our society’s moral and religious faculties. In a traditional culture, laws have never played a major role, whereas religion and morals have always played strong roles. However, in modern culture, life moves at a breakneck pace, making morals and religion obsolete and so now, the law is playing a major role in human development.

The conflict between law and morality

Does the law have the power to interfere with the religious and moral feelings of the people? This includes instances such as prostitution and homosexuality, where people have conflicted opinions based on their moral sentiments. Homosexuality is considered to be immoral by many, and it was even criminalized in India under Section 377 of Indian Penal Code (IPC) until 2018 when it was finally scrapped. Such laws might be considered immoral by many, but with the modern pace, it is important to think with practicality and equality and thus, they are made legal.

Another issue we are handling is abortion. Abortion is accepted as one of the most debatable issues in bioethics. It does not only involve doctors but also the morals and ethics of people and also the law. Abortion is immoral since it develops the deliberate destruction of a human being. As per the law in India, abortion is allowed in only a few exceptional cases and in a restricted manner. This shows that at times, man’s conscience may regard an activity as immoral, but practically, its legality has to be taken into consideration.

Natural law, positive law, and morality

Exclusive positivists like Bentham and Austin reject the involvement of morality in law, whereas inclusive positivists like Hart accept morality in law to some extent. They have always kept law away from morality as they believed that law should be studied as it is and not how it should be. Natural law thinkers, on the other hand, have always considered morality as higher law and ridiculed man-made laws. The natural law system depends upon the standards and yardsticks of morality to formulate any law, whereas the positivist system of law depends upon the conscious and deliberate attempt of lawmaking. It has always been contended by Austin and Bentham that law never enforces morality.

Law, at any given period and in any given place, becomes a tool for establishing a certain expected social conduct. Morals may be for enlightenment and to help individuals. Aspirations have an impact on life; therefore, a legal system should be based on principles of ease and fairness. A law cannot and should not promote any such moral which can impact the growth of society negatively.

As per Dworkin, the law is not entirely founded on social facts, but also involves moral justifications for institutional facts and activities that we intuitively accept as legal. He is not in favour of all sorts of morals, since it creates uncertainty in legal matters. Some empirically recognized morality is inextricably linked to the legal sphere and the underlying issues of legal principles. However, he opposes the “a priori” style of thinking.

Hart-Fuller Debate

Hart advocated a positivist stance, saying that morality and law are distinct. Morality, on the other hand, can play an important role in any legal system, but it cannot be dominating and determinant. After all, whether it is ethically just or unjust, the law is the law. Because of human frailty, approximate equality, limited generosity, limited resources, and limited understanding and strength of will, he emphasized the minimum content of natural law in positive law for the benefit of the legal system.

Fuller rightly asserted that the eventual need of law is to comply with inner morality. Law in total divorce or opposition to morality cannot be called a “law”.

Article 21 of the Indian Constitution

Article 21 of the Indian Constitution covers many aspects of personal liberty and the right to life. It ensures protection only against ‘State’ and not against ‘private individuals’. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the US Constitution, Article 40(4) of the 1937 Irish Constitution, and Article XXXI of the 1946 Japanese Constitution. But what makes the Indian Constitution different from these rules on life and liberty is that the Indian Constitution treats individuals with an aim for overall development and well-being and protection from any sort of aggression by the State, whereas these other provisions treat individuals merely as physical entities.

There is an exception to this, i.e., except according to the procedure established by law, states shall preserve personal liberty and protect the life of an individual. This right extends to all the natural persons, i.e., to citizens as well as to foreigners.

Right to life with dignity

This implies that the right to life involves the right to be treated with dignity and respect. One should have the freedom to make his or her own decisions, as well as human respect in the community and access to necessities. In Occupational Health and Safety Association v. Union of India (2014), it was ruled that basic/proper working conditions and workplace environment fall under the right to live with dignity.

In a recent landmark judgment, the Navtej Singh Johar v. Union of India (2018) case on homosexuality, it was held that the right to live with dignity includes all those rights which enable a person to lead a respectful life in society without any disturbance to his personal safety, privacy, and respect. Thus, the court then decriminalized gay sex and scratched Section 377 of IPC.

Life is not counted by the mere existence of a human being. Like necessities, it has a more extensive significance which incorporates the option to live with human poise. Justice Mishra Ragnath rightly pointed out in Parmanand Katara v. Union of India that ‘preservation of life is of utmost importance because if one’s life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man’. After the second world war, the international community considered human dignity as the most important thing to be protected if we want to protect humans.

But does this right to life also include the right to die with dignity?

Right to die with dignity

The presence of such a right as the right to life, including the right to live with human dignity, would imply the existence of such a right till the end of natural life. This may involve a dying man’s right to die with dignity. However, the right to die with dignity should not be confused with the right to die in an unnatural manner that shortens one’s natural life span.

In the recent past, a controversial issue was raised regarding the right to die, involving euthanasia. Euthanasia involves the deliberate termination of life; a patient suffering from a painful and incurable disease or incapacitating physical disorder chooses to end his life rather than suffering from the disease.

In its latest judgment in the case of Common Cause (A Regd. Society) v. Union of India & Anr, on March 9, 2018, the Apex Court included the right to die with dignity as a part of the right to life under Article 21. Before the common cause judgment, the right to die with dignity was not recognised. The Supreme Court of India held that a person in a persistent vegetative state can opt for passive euthanasia; a person can execute a living will to refuse medical treatment in case of a terminal illness. This judgment legalised passive euthanasia, thus conferring a right to die. The court held that the right to die with dignity is a part of the right to life with dignity. A person should have his decision on whether he wants to live or die. Such interpretation aligns with Article 1 of UDHR that defines a dignified life and Articles 6, 7, 17, and 18 of ICCPR that broaden the conceptualization of the right to a dignified life.

In 2020, due to COVID-19, the Supreme Court took suo motu cognizance regarding the undignified treatment and disposal of the bodies of COVID-19 patients. The Court asserted that indignity shown towards the dead patients shows “grave infraction of the citizen’s right to die with dignity”. In the suo motu writ petition, it was observed that the patients and dead bodies were kept in the same ward. In fact, the dead bodies were seen in the lobby and the waiting room without proper care. Even relatives of the body were not informed when the bodies were cremated so that they could have attended the last rites. A senior advocate of the Supreme Court has said the fundamental right to die with dignity embraces the right to decent burial or cremation.

Right to decent burial under Article 21

In a suo motu case of Madras High Court in April 2020, amid the COVID pandemic, the order issued summary guidelines concerning tackling the pandemic. It also asserted that the Dead Body Management mentioned standard precautionary measures and the court asserted the same, concerning Article 21.

The right to safety and dignity granted to a person under Article 21 of the Indian Constitution is primarily for the safety and dignity of that person’s body, as well as to prevent any crime or harm from being committed against it. Similarly, the bodies of the dead must be respected and treated with care and dignity, because a third person has no control over whether a person is alive or dead.

Right to privacy

This right was earlier not recognized as a fundamental right in India but with time, this became a fundamental right under the right to life. This is not an absolute right as it is subject to reasonable restrictions for the greater good.

The first case where the right to privacy was recognized was R. Rajagopal v. State of Tamil Nadu (1994). In this case, a prisoner wrote his autobiography, wherein he mentioned that the prison officials had acted as his partners in crime. The officials stopped the publication of the autobiography and so the editor filed a petition. It was held that it is the prisoner’s private information and it depends upon him about whom he wants to write in his autobiography and so he should not be stopped from getting it published. This set a precedent for future cases regarding recognizing the right to privacy as a fundamental right.

Justice K.S. Puttaswamy (Retd.) v. Union of India (2015) is a landmark judgment that has to be studied when we talk about the right to privacy. This is a very recent landmark case dealing with the right to privacy and Aadhar Card. A retired Karnataka High Court Justice brought the case before the 9-judge bench challenging Adhar Card which used biometric identification, stating that this hampers the right to privacy. At that time, no strict data protection bill existed. It was unanimously held that the right to privacy is a fundamental right under Article 21. It upheld that the Aadhar Card is constitutionally valid but certain provisions of it were struck down as being violative of the right to privacy.

Many other rights such as the right to medical assistance, sleep, etc. are also with time and coming judgments got added as a part of the right to life.

Case analysis of Shashimani Mishra v. State of Madhya Pradesh

Facts of the case

The Petitioner No.1 was Mrs. Shashimani Mishra, W/o. Mr. Kulamani Mishra. Petitioner No.2 was Dr. Rajendra Kumar Mishra and he was the son of Petitioner 1, and an Indian Police Service Officer posted as Additional Director General of Police (Recruitment). They both lived in D-7, 74 – Bungalows, Bhopal. The petitioners were aggrieved by the letter issued by the State Human Rights Commission. Respondent No.2 herein, addressed to the Director-General of Police, Madhya Pradesh, and by another letter issued by the DGP, to Respondent 2.

On 14th February 2019, a report in the newspaper name “Hari Bhoomi” was published which stated that the father of petitioner 2 passed away and still the dead body was kept with the petitioners in their residential premises which caused inconvenience to the two guards, who eventually fell ill allegedly due to the stench emanating from the decomposing body.

Based on this newspaper report, respondent 2 sent a letter to DGP seeking answers to these questions raised by him – “Call for the report from (1) DGP Bhopal – whether it is a natural death or unnatural? – whether the dead body has been cremated or not? – what scientific measures have been adopted to preserve the dead body and to stop the bad smell? Within three days”.

In response, the Police HeadQuarters (PHQ) replied to Respondent 2 that Mr. Kulamani Mishra was admitted at Bansal Hospital on 13/01/19 with a serious respiratory condition and that he passed away at 4:30 p.m. on 14/01/19 and mentioned that it was natural death but last rites were not performed. PHQ said that they cannot provide information on scientific measures practiced by the petitioner to keep the body at home.

Now, in response to this report by PHQ, the respondent issued directions to DGP for forming a committee of medical specialists headed by the Superintendent of Police, who will visit the resident of the Petitioner informing him the reason for the visit, and if the petitioner resists, the tram will be authorised under Section 13(3) of the Protection of Human Rights Act, 1993. Thereafter, the petitioner filed a writ petition on 22nd February.

The contentions of the parties

Contentions of the Petitioners

Mr. Ajay Mishra, Ld. Sr., counsel appearing for the petitioners, contended that the father of petitioner 2 Mr. Kulamani Mishra is still alive and is undergoing ayurvedic treatment. Although he agreed that Mr. Kulamani Mishra was admitted to the Bansal Hospital but he did not agree to the death certificate issued. The counsel of the petitioners also argued that it was wrong on the part of Respondent 2 who tried invading the privacy of the petitioners based on a newspaper report which is itself not correct. The counsel said that no such statement of guards got recorded regarding their illness due to the corpse, and also said that it is undisputed that the identity of the said guards is not known. He rightly asserted that if the father would have died that the decomposition had irritated the neighbours but no such complaint was done. The counsel said that there was a violation of the right to privacy as per Article 12 of the Universal Declaration of Human Rights which provides for the protection of an individual’s right to privacy against arbitrary intervention with the same. It gives the right to protection of the law against such attacks.

Contentions of the Respondents

The counsel for respondent 2 argues that Kulamani is dead and the corpse is kept at his home. This poses a great danger to the health of the neighbours and Mr. Kulamani Mishra should be subjected to last rites as per the rites and rituals of the Petitioners and that would be the way in which a dignified quietus is given to the entire episode. The counsel for respondent referred to a judgment of Madras High Court in S. Sethuraja Vs. The Chief Secretary, Government of Tamil Nadu and Ors (2007), where an Indian National died abroad and his kin wanted the body to be brought to India to perform the last rites as per the Hindu rituals and so they approached the High Court of Madras. Through this case, the counsel tried to show that Kulamani Mishra deserved dignified disposal in accordance with the rites and that the retention of the remains by the Petitioners violates the human rights of Mr. Kulamani Mishra, which continues even after his demise till the dignified disposal of the body.

Issues involved

The questions involved in this case were whether the act of the Petitioners in retaining the body of the deceased and not subjecting it to last rites is illegal? And, was there an invasion of the privacy of the petitioners and so does this right privilege the petitioners to prohibit the officers from entering the premises?

Judgment of the M.P. High Court

The Court proceeded to examine what makes an act lawful or legal and in the converse, what is unlawful or illegal? Where the law permits certain acts, those acts are considered legal and the acts prohibited by law are considered illegal. But, where the law is silent about the legality or illegality of any act, would the performing of such act be termed as unlawful if such act goes against social mores and perception of society? A person has the liberty to perform such an act if the law is silent on it. Thus, it is not sufficient that an act must be right or wrong applying the standards of contemporary social morality. The act must be wrong in the eyes of law.

The Court rightly pointed out that a legally wrong act is against legal justice and law. It may or may not be a moral wrong, and conversely, a moral wrong may or may not be wrong in law. Thus, one cannot mix these two terminologies. Morality and law are to be treated differently especially if the act finds a violation of one and not the other. What the counsel of respondent 2 argued is that dealing with human remains in a manner contrary to social norms is violative of the human rights of the deceased. But social norms cannot compel someone to behave in that manner.

Since it was not clear as to whether the father of the petitioner died or not, still assuming that even if he is no more, the court observed that performing last rites may be considered socially important, however, it cannot be said that failure to consign human remains to last rites would not result in violation of Article 21 or human rights of the deceased.

Next, the Court looked into the question of the violation of privacy alleged by the petitioners, and whether they had the right to prevent authorities from entering into their premises to check the condition of the father. The right to privacy is a fundamental right of a person and a person’s home is his castle, as observed by the Court. The court said although, if the father is no more, then keeping the dead body at home might be considered abhorrent by many, it does not give any right to authorities to intervene in the right to privacy of petitioners if the act was not unlawful or illegal.

Thus, merely because the petitioner has kept the remains of his father at home does not permit the authorities to invade their privacy and proceed with an investigation.

Conclusion

To conclude, the Court held that the petitioners succeed in this case and the directions given by respondent 2 to the State are held to be violative of the right to privacy of the petitioner, under Article 21 of the Constitution of India. Law and morality do have a similar base, but they are different and should not be confused with each other. What is moral may not be lawful and what is immoral may be lawful.

Reference

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