The Hart-Fuller Debate and the Indian Constitution

John Austin in his critically acclaimed work ‘Lectures on Jurisprudence or the Philosophy of Law’ remarked, "The existence of law is one thing; its merit or demerit is another."

The debate on the validity of any law based on its moral content is a long-drawn and never-ending one. It all began with a certain judgement, known as the Grudge Informer Case at the end of the Second World War, which led to Professor H. L. A. Hart and Professor Lon L. Fuller going head to head regarding the infamous great divide between legal positivism and natural law theory. The brief facts of the case as depicted in Keith Culver’s ‘Readings in the Philosophy of Law’ are as follows:

In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defence of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statues, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German court for an offence which we would describe as illegally depriving a person of his freedom (rechtswidrige Freiheitberaubung). This was punishable under the German Criminal Code of 1871, which had remained in force continuously since its enactment. The wife pleaded that her husband's imprisonment was pursuant to the Nazi statutes and hence she had committed no crime. The court of appeal to which the case ultimately came held that that wife was guilty of procuring the deprivation of her husband's liberty by denouncing him to the German courts.

One has seen how positive law dented the natural law in the 19th century, yet how in the 20th century the natural law rose again like a phoenix. In this paper, the author will analyze the effect of the Hart-Fuller debate in the 21st century, and especially with special reference to the Indian Constitution and the legal system in this regard.

Professor Hart's Concept of Law

Professor Herbert Lionel Adolphus Hart was a Professor of Jurisprudence at the University of Oxford.  Being a positivist, he greatly valued the ideologies of scholars such as John Austin and Jeremy Bentham, and strongly advocated legal positivism. He was against the blurring of lines between what the law "is" and what the law "ought to be" as he believed that there exists a rigid dichotomy between the two.

In his paper ‘Positivism and the Separation of Law and Morals’ which was published in the Harvard Law Review, he has defended the positivist school of jurisprudence which it faced for creating boundaries between legal accountability and moral conscience. Professor Hart has heavily criticized the decision by the German court for its utter disregard of the written law. He felt that law and morality mutually exclusive, and that a law need not have moral origins just to be a valid law. He greatly condemned the act of using the terms "law" and "morality" interchangeably and said that it does not matter how we feel towards a particular law, but that we must follow it without question since it is the sovereign law of the land. In his opinion, a law should not be struck down just because it seems to be morally wrong. He was all for literal statutory interpretation and following the statute as a whole, implying that one must follow the black letter law rather than seeking to find ethical and moral codes in it.

Professor Fuller's Concept of Law

Professor Lon Luvois Fuller a Professor of Law at the Harvard University. Although he was not a pure natural law theorist, he acknowledged Thomas Aquinas’ guidelines regarding the contents of a valid law, i.e. it should be sufficiently generalized, in public knowledge, applicable to future behaviour of man, comprehensible, unambiguous, contemporary, easy to follow, and containing a certain degree of morality.

In his reply to Professor Hart titled ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, he said that law cannot exist without its inner morality, as this is a key characteristic which is inherent in laws and thereby inalienable from the law-making process. For him, if a law did not contain morality, then it should be void ab initio and not considered to be a law at all. He also said that there needs to be an objective behind any law which is made, and that it should lead to the realization of values and morals which compel one to follow them, rather than they are followed only due to the fear of being imposed with sanctions. The citizens would have an affinity to conform with "good laws" as they fulfill the objective of what can be termed as good governance, rather than demanding respect towards absurd and irrational laws. He also rejects Professor Hart's method of statutory interpretation, saying that we must look at the conscience and spirit of the statute, rather than trying to fathom the meaning of individual words to create a generalized standard for the same.

The Meaning of Law and Morality

As is the case with any topic in Jurisprudence, it is impossible to pinpoint towards distinct definitions of law and morality. Black's Law Dictionary defines law as "A system of principles and rules of human conduct, being the aggregate of those commandments and principles which are either prescribed or recognized by the governing power in an organized jural society as its will in relation to the conduct of the members of such society, and which it undertakes to maintain and sanction and to use as the criteria of the actions of such members," and morality as "Pertaining or relating to the conscience or moral sense or to the general principles of right conduct."

From the above two definitions, one can see that laws are something which govern the outward (i.e. public) behaviour of a citizen, whereas morality influences the intrinsic (i.e. private) as well as the outward actions of a human being. Another difference which one sees is that a person is compelled to obey laws, as deterrence from the same would get them punished, whereas certain deeds are solely dependent on morality and do not hold one legally liable if one chooses not to complete those acts.

That being said, there are often points of intersection where some laws contain moral incentives, and thus, people are more encouraged to abide by the rules. By this the conclusion can be drawn that both law and morality are equally important, and both of them readily influence human conduct, albeit in their own unique ways.

The Indian Constitution and the Indian Legal System

Positivism theory says that law is about norms, rules, procedures, etc, and if these are being followed then one does not need to discuss about the morality of law. According to Professor Hart in his book "The Concept of Law", law has been justified by primary rules (substantive in nature) and secondary rules (procedural in nature). Primary rules are those which oversee the daily routine of the general public. They develop legitimate duties and subsequent outcomes on not being obeyed. On the other hand, secondary rules give the power to create sovereignty; this allows humans to question the existing sovereigns by doing or saying certain things which leads to the introduce new rules, and abolition or modification of the previous rules. Therefore, while primary rules impose duties, secondary rules confer public or private power.

The Indian legal system is a fairly developed system and the Constitution of India consists of both primary and secondary rules. Primary rules of obligation in the Indian legal system include customs which are recognised by courts and various statutes. This is evident from the changing status of customs. In the yesteryears, Hindu and Muslim laws as practiced in India were the clear proof that custom overrides written laws; even though the customs were harsh and illogical, people still followed it. However, one can see a gradual shift from following laws blindly to amending laws so as to incorporate moral aspects in them. For example, Sati Pratha was a commonly followed funeral ritual where the widow was supposed to immolate herself upon the death of her husband. This was abolished by an Act which was formulated under the British Raj, as it lacked morality due to its barbaric and discriminatory nature. Another such example was the practice of untouchability, which involved the act of keeping the people of lower caste at a distance and denying them social equality. "Untouchables" were despised and ridiculed by the upper caste members. This was brought to an end in 1950 by way of Article 17 which abolished untouchability in all and every form. Further, the Parliament of India passed an Act in 1955 to create a system of double-check on the same.

Morality in Law and the Indian Constitution

The Indian Constitution is seen as a fine art between natural law and positive law. It is clear to see that the Indian Constitution does not strictly adhere to Professor Hart's theories or Professor Fuller's theories alone, but is a mixture of both, depending on whatever is the demand of the situation at that point of time. It is true that in the previous years, it was leaning more towards legal positivism, and in the latter years it was favouring moral laws. One can see this by taking the example of some landmark cases.

The Indian legal system favoured morality over written laws in the case I. C. Golaknath & Ors. v. State of Punjab & Anr., where the Hon’ble Supreme Court held that all constitutional amendments up until the case were void ab initio if they made exceptions to the Fundament Rights of the citizens or were in simple contradiction to them. In Maneka Gandhi v. Union of India, the passport of Ms. Gandhi was taken away by the regional passport without providing adequate reasons for the same. The Hon’ble Supreme Court held that this was in violation of Articles 14 and 19, and that it was clear deprivation of personal liberty. It was also held that apart from being an enabling law, the law must follow due process and be fair and just. In the case of E. P. Royappa v. State of Tamil Nadu, the Hon’ble Supreme Court for the first time said that Article 14 also guaranteed a right against arbitrariness.

An instance where the Indian legal system strictly followed legal positivism was in A. K. Gopalan v. State of Madras, where the Hon’ble Supreme Court rejected A. K. Gopalan's plea that his  right to equality was being violated due to his detention. The Court said that he had been detained as per the law, and that the law was to be strictly followed. Similarly in A.D.M. Jabalpur v. Shivkant Shukla, the government was allowed to suspended all civil rights of the citizens and arrest anyone as they pleased, without providing them with any sort of legal remedy - all in the name of The Emergency.

While morality is used as a medium to safeguard the rights of citizens and to prevent the abuse of power by the higher authorities, it is not all about kindness and generosity; it can also be used to moderate some liberties which have been provided to the citizens by the Indian Constitution. The Hon’ble Supreme Court has held that the administration has the ability to keep a check on various occupations, and the State has the right and duty to look after the morals, protection and general well-being of the people. Taking the example of clause (6) of Article 19(1)(g), rational constraints are enforced in public interest, which may include ethics also. Hence, activities like dealing in liquor come under its ambit. Another example is Article 25, which says that religious groups may conduct their activities so long as it does not disrupt public order nor does it hurt the sentiments of fellow citizens, as decided in the case Acharya Jagdishwaranand Avadhuta v. Commissioner of Police.

Present Day Scenario

In present day times, we can pick up any case law and it will readily prove that the executive, legislative and judiciary are upholders of laws that have basic conscience and inner morality.

For example the regarding the provisions of talaq-e-biddat, which let Muslim men divorce their wives merely by chanting the word 'talaq' three times in either written or oral form, the Hon’ble Supreme Court of India in Shayara Bano v. Union of India case struck down the practice as being unconstitutional. This was done due to issues such as gender equality, delayed justice, human rights, etc. Justice Y.V. Chandrachud said that, "What difference does it then make as to what is the religion professed by the neglected wife, child or parent... That is the moral edict of the law and morality cannot be clubbed with religion." Again, the in the case Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, the Hon’ble Supreme Court gave a landmark judgement in which it partially struck down Section 377 of the Indian Penal Code to recognize the sexual rights of the LGBTQ community members, stating that it came within the ambit of Right to Privacy. Former Chief Justice of India Dipak Misra said that, “Morality cannot be martyred at the altar of social morality. Only Constitutional morality exists in our country.” Coming to the issue of the Sabarimala temple, the Hon’ble Supreme Court in Indian Young Lawyer’s Association & Ors. v. State of Kerala & Ors removed the ban which declined access to females aged 10 to 50 years from entering into the temple and said that, “Devotion cannot be subjected to gender discrimination.”

Moving over to a topic of a slightly different tone, the Hon’ble Supreme Court tries to associate moral standards even in the case of criminals. Instances such as protecting the rights of those in custody is something which is promoted by the Indian Courts and legislations. Given that a criminal has committed wrong and thereby imprisoned, yet it does not mean that he/she is any less of a human being and that he/she should be deprived of his/her rights. Prisons are built to punish, but are also supposed to provide rehabilitation and recovery that permits the accused to be rehabilitated and return into society. There are legal provisions which ensure these things, such as Articles 14, 19 and 21 being available to all inmates, Chapter V of The Code of Criminal Procedure which deals with the interests of an arrested person, the Juvenile Justice (Care and Protection of Children) Act, 2015 attempting to reform children in conflict with the law, etc. Acts leading up to atrocities like custodial deaths have been severely criticized, and has been termed as "the worst crime in a civilized society to be governed by the rule of law" in the landmark case of D.K. Basu v. State of West Bengal .

Conclusion

In the words of the Prominent French writer, Claude-Frederic Bastiat:

"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."

In light of the recent judgements and the examples taken from the past, the hypothesis has been disproved, as it is seen that the Indian legal system does not strictly adhere to Hart's theory of law. In fact, the Constitution of India is not merely a government document, but in addition to that, it is also a reality and medium to help realize social change. It is a living, inorganic document which has been drafted after much debate and deliberation by "We the people of India." It does not merely present certain laws to be followed by the citizens, but is also seen as the protector of the rights and duties of the citizens. The Indian citizens do not feel compelled to obey the Constitution just for the fear of sanctions, but also because they know that they will be provided with remedies if the need so arises. Moral principles are a part of constitutional values as followed by the courts.

There is an indispensable need for laws to contain some sort of inner morality before they are promulgated to administer the people's actions. It would reflect badly and cause a dilemma in the minds of the people if they were given the choice to obey or disobey morally wrong laws: because obeying the law would cause them to be in conflict with their inner conscience, whereas disobeying the law would lead to them being punished. So in order to avoid such a confusion, the ideal situation would be one where laws contain inner morality, so that the people are not hesitant in following them. Any social experiment would surely give the results that the majority would not follow "bad laws" as they would not feel morally obliged to do so. Hence, lawmakers should respect the legislative intent and objectives before drafting any law, instead of forming stringent laws and expecting people to obey them without question.

BY: NAVIN KUMAR JAGGI & SARAHNA EKKA

 

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