Comparative study of Indian and USA Constitution.

Comparative study of American and Indian Constitution*

American Constitution is shortest and second oldest, where as India’s is lengthiest Constitution in the Universe. The US Constitution was finalized in the convention held on the September 17 1787 which required minim 9 States to ratify for the enforcement. By the end of July 1788 eleven States had ratified and Constitution was put into operation on 13^th September 1788. American Constitution originally consisted only seven Articles and added 27 more Articles by way of amendments. The Indian Constitution was actually put into enforcement on 26^th November 1949 but officially adopted on 26^th January 1950. Originally India Constitution consisted 395 Articles in 22 parts with 8 schedules. and 22 parts. Now it consists  448 Articles in 22 parts with 12 schedules. Author of the article has tried to analyze the dissimilarity between the US and India Constitution. America has adopted the doctrine of dual ship in respect of Constitution and citizenship. It has two Constitutions, one, for America as whole and second one for each State. American people have two citizenship, one of USA and another of their respective State. India has one constitution and one citizenship for its entire people.

Nature of the Constitution.

American Constitution is described as truly federal Constitution because it was ratified by 50 Independent States. Further, federal government and States have their own Constitution and does not interfere with function of each other. On the day India got its independence, most of the States in India were already under the rule of government of India and other few sovereign States were forced to join the Indian Constitution. We have one Constitution in which the federal government interferes with functions of State government in the form of appointment of governors, governor reserving the States bill for the consent of President and central government power to impose the president rule in the States which makes the State government subordinate to the central government. Because of all these reasons the constitutional intellectual are not unanimous in holding the Indian Constitution is federal. Sum jurist also say it is neither unitary nor federal but “quasi-federal” Constitution.

Nature of Democracy.

America has adopted the Presidential form of democracy in which the executive President is directly elected by the people who is powerful and not accountable to House of Congress. American President Term is 4 years, he can hold the office of the President for only two terms and only natural citizen of US can become the President, and not a person who has acquired the citizenship. President can appoint his own staffs who are neither member of House of Representative or Senate in assisting the administration of government who are also not accountable to the House of Congress. It means that President is independent in the administration of government and directly responsible to the people of USA.  India was under the rule of British at the time of independence and this influenced us to adopt the democracy of Parliamentary System of Common legal system. President of India is executive head of Indian government who is indirectly elected by the legislators of central and states and not accountable to the Parliament. President shall run the government with aid and advice of the Prime Minster and Council of Ministers. Prime Minster and Council of Minsters is subordinate staff of the President being the members of the Parliament, therefore they are accountable to the Parliament. Unlike USA Indian President holds the office for five years, he should be citizen of India and citizenship might be natural or acquired. Further, he can be  elected for any number times. The impeachment of the President by the legislator is only similarity of both Constitutions.

Veto Power.

The Indian President is called as puppet or rubber stamp because he has to act on the advice of Council of Minster who are accountable to Parliament. This is not so incase of the US President. He can call shots on his own judgment more- ever the subordinate staff appointed by him is accountable to himself but not the House of Congress.  US President has explicit power to return the bill passed by the House of Congress with objections otherwise he has to the sign the bill within 10 days excluding Sundays. If President does not sign nor returns the bill within 10 days the bill is deemed to be law. When both House of Congress reconsiders the objection and passes the same bill with 2/3 majority, the bill would become the law without the signature of the President. And getting 2/3 majority by either Democratic or Republic party at both Houses at same period is remote possibility that’s why the American President power of rejection is called veto power and makes him real and  powerful executive President. In India too the President has power to send back the bill to Parliament for reconsideration. When the Parliament has reconsiders the bill and passes with simple majority the President has no option but sign the bill. The Prime Minster and his Cabinet always enjoys the simple majority except in coalition government so it would not be major hurdle for Prime minster and his cabinet to get the signature of the President for the bill. Hence Indian President is called a puppet. Unlike US, the Indian Constitution does not prescribe the time limit for signing the bill by President. Therefore he can keep the bill without signing for indefinite period under the disguise of consideration which can frustrate the Prime Minster and his cabinet. Obviously the question arises whether India’s President implied negative power of veto is more powerful than the US President’s explicit positive power of veto. 

Date of Retirement and Oath.

Unique feature of US Constitution is that it has prescribed the date and timing of the retirement of outgoing President and Members of the Congress. The terms of President and Vice President shall end at noon on the 20^th day of January in which their term would have ended. It means that the New President and Vice President shall take oath of the office on 20^th January at noon of their first year of office.  The election of the President and Vice president are held in the month of November and in the same month results are announced. Thus Americans are informed much earlier to their new President.  Naturally, the question is how this time schedule is maintained. In case of President’s death, resignation, or impeachment occurs the Vice President shall become the President for remaining period. In this way duration of President is kept intact and next elected President takes oath on the schedule date. In India, if President dies or impeached, or submits resignation, the Vice President becomes the President till the fresh election are held and new elected President holds the office for full term of five years. Hence the time schedule of American system cannot be maintained.

The Members of the Representative and Senate terms comes to end on 3^rd January. America’s House of Representative and Senate are permanent Body. Entire world holds the American democracy in high esteem because of its impeachable of holding elections on time fixed schedule. In India, during the emergency duration of Lokshaba can be extended by one year, and the duration of Lokshaba can be shortened by holding pre-matured election. The Prime Minster and his Cabinet Ministers forms opinion that their party chances are bright in the next election; they may recommend for the dissolution of Lokshaba and suggest the President to hold the election at appropriate time which is based on political expedicy.       

Doctrine of separation of power.                                                                           

US Constitution has strictly adhered to the doctrine of separation of power invented by the Locke and Monotosque, 18^th century political philosopher. House of Congress enacts the law and President executes the law and Supreme Court interprets the law. American President has no privilege of law making power; moreover he is neither member of House of Representative nor Senate. By confirming veto power and equally not confirming law making power to President, the Congress controls Presidents and vice versa. In this way checks and balance are maintained. Theoretically we say that doctrine of separation of power is adopted in our Constitution, but it is not so. Prime Minster and Council Ministers are real executive of Indian government because the President has to act on the advice of Prime Minster and his Colleague. Prime Minster and Council of Ministers are from the majority party in the Parliament. Therefore, they  have dual capacity, one, in capacity of executive and another in the capacity of law maker. Prime Minster in the capacity of leader of the ruling party, enacts a law which is convenient for his administration. Prime Minster and his Council Ministers enact the law and execute the same which is blatant violation of doctrine of separation of power.

Human Rights.                    

America has incorporated the “Bill of Rights” and India “Fundamental Rights” into their Constitution.  American Constitution has provided the additional human rights which are not in the Indian Constitution. Freedom of press is explicitly provided under the 1^st amendment of the US Constitution, in India it is impliedly read under the Article 19[1] [a], freedom of speech and expression. Petition to the Supreme Court is fundamental right in India, where as in US it is petition to the government. The world “government” gives wider meaning covering not only higher judiciary even the executive also. American people have the right to keep the arms and guns for the protection of their life and property which is provided under 2^nd amendment. Therefore, the guns and arms are sold like commodity in US without legal hassles, where as in India it is totally contrast because it is not fundamental right and moreover it is highly regulated legal right. Vth amendment of US Constitution guarantees that the accused will be tried for criminal offence with system of “Grand Jury”, in India criminal trials are adjudicated by the judges only. Grand Jury means common people are selected by the government randomly representing the community, those will decide the guilt of the accused persons. Number of selected persons varies from 6 to 12 or even more if the case is controversial. No person’s life and liberty shall be deprived without “due process” of law in US. Due process means the content and procedure of law must be just, fair, and equitable which will be decided by the judiciary. Legislative power of depriving the person liberty is restricted and scrutinized and evaluated by the judiciary. In India the person’s life and liberty shall be deprived according to procedure established by law. The world “procedure established by law” gives wide discretionary power to the legislator to restrict the liberty. Nevertheless, the Supreme Court in Menaka Gandhi case, even though the court did not use the world due process, it held that the procedure established by law must be fair, just and equitable. Indian Parliament deleted the right to property from the list of Fundamental Rights in 1978. Where as in US the right to property is still fundamental right and no property shall be acquired without just compensation. Accused person of crime enjoys certain explicit rights under the VI Amendment of US Constitution; those are speedy and public trial, notice of accusation, compulsory process of obtaining witness in his favor and assistance of legal counsel of his choice. All these rights in India are not expressly mentioned in the Constitution, nonetheless these rights are provided by the Supreme Court by broadly interpreting the life and liberty under Article 21. Further the VIII amendment of US says that the bail shall not be denied to accused, the imposed fine should not be excessive and inflicted punishment shall not be cruel. These rights are also made available to Indian people because of well established precedents pronounced by the Supreme Court under Article 21. IX amendment of USA Constitution is most important because it says that mere enumeration of certain rights in the Constitution shall not be interpreted to deny the other rights retained by the American people. In spite of the statutory rights in the Constitution people enjoy the other rights which are given by the nature. American Constitution is highly influenced by the Locke’s philosophy of inalienable natural rights of human being. Indian Constitution does not contain such notable Article; therefore Indian people enjoy only those rights recognized by the Constitution which is based on the philosophy of Austin and Bentham theory of law.

Distribution of Legislative Power.

Seventh Schedule of Indian Constitution distributes the legislative power between the Central and State governments. The Central and State governments have exclusive power to make laws on the 97and 66 matter listed in the Union and State list respectively. On the 47 matter of Concurrent list both Central and State can make law, in case of conflict laws the law of Central would prevail. 97^th matter of Union list says any surfaced new matter which is not in any other list would confer power to Parliament to make law. Our constitution makers have created strong Central and weak State governments which depend upon the financial assistance of the Central government. It is contrast theory in US, where there is no elaborative mechanism is provided. Few expressly mentioned matters are with the federal and rest of the matters with State governments. Therefore in America the States are financially stronger than Federal government.

Emergency and Suspension of Writs.

In India the emergency can be declared on the ground of War, Aggression of War, and Armed Rebellion. During such emergency all fundamental rights except the right to life can be suspended. American Constitution does not use the phrase of emergency but says that in case of Rebellion and invasion of public safety the writ of Habeas Corpus can be suspended.  

Judiciary.

In America the President has final say in the appointment of Supreme Court Judges. He suggests the names of judges to Senate and with advice and consent of Senate, judges are appointed by the President. Judicial committee of Senate plays very significant role in evaluating the cardinals of the proposed judges of the Supreme Court. They make the investigation of the background of judges, they hold the face to face interaction with judges, the judges are queered and grilled and questions are put. The whole process happens in public and in transparent manner. The citizens of US has any information about judges integrity, they can send the information with evidence to the Senate Judicial Committee which will  make the further investigation and make sure that no unworthy candidate will be appointed as judges to the Supreme Court. In the appointment of Judges the people of US also participates and the judiciary of US has no role to play in the appointment of judges. The entire process of appointment of judges is crystal clear.  Judges of US holds the office for lifetime. In India the entire process of appointment of judges happens in the darkroom between the judiciary and executive. The people of India would come to know of their judges only after the appointment. Neither the peoples are informed in advance nor the executives makes open enquiry of judges. President appoints judges to Supreme Courts on the recommendation of the Prime Minster and Cabinet. The prime Minster and Cabinet consults the judiciary  in which the Chief justice and  four senior judges of SC plays very dominant and decisive role in preparing the list of  judges which will be sent to President for the appointment. The entire process of appointment of judges happens in the backyard and under the carpet without involvement of the people which is serious flaw of the Indian legal system. Judges holds the office up to the age of 65.

Amendment of Constitution.

Amendment of US constitution is very rigid and complicated; in case of India it is easy and flexible. According to V Article House of Congress with 2/3 majority can proposes for amendment of the Constitution. States can make application for calling convention for amendment of Constitution with support of more than 2/3, the convention shall be called and proposed amendments shall be valid. In US both House of Congress and States have power to amend the Constitution. The amended Constitution has to be ratified by more than 3/4 States to take effect. The Stares have very decisive and vital power in validating the every amendment of the Constitution. In India, it is only Parliament can propose for the amendment of the Constitution and States do not have role to play anything in this matter. Some of the Articles can be amended with simple majority, special majority and in some limited Articles with ratification by more than half of the States. Majority means majority of the Member of the Parliament present on the date of amendment not in relation with total strength of the Member of Parliament. The fact that US Constitution amended only 27 times in the last 225 years shows how rigid it is to amend the Constitution. Indian Constitution amended more than 95 times in the last 60 years proves how easy to amend the Indian Constitution.

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* S.G.Goudappanavar,LL.M. lecturer, gouri1000@gmail.com  S.C.Nandimath Law College, Karanatak.

Comments on Consumer Protection of Act 1986.*

The necessity of Consumer Protection Act was being felt for considerable time as the consumer was being exploited by the manufacturer, trader also service provider.

Protection of consumer right is not new concept. Of course, in India it is recent phenomenon. It is the by-product of industrial development and socio-economical advancement. During late 20^th century consumers, rights were rigorously highlighted and bought to the notice of legislators. Consumer is being centre point of today’s market yet he is taken for granted and exploited. To protect him from such exploitation special legislation with enforcement machinery is required. Hereinafter the Consumer Protection Act 1986 is called as CPA. The experience proved that the protection of consumer from various wrongs for which the remedy under ordinary law for various reasons has become illusory.[1]

There is some legislation enacted to protect the interest of consumer but failed to protect because the enforcing machinery is either corrupt or inefficient.  The CPA has come like a boon to the consumer as legislation ensures cheap justice, speedy justice and hassle free justice. It cannot be denied that CPA has fulfilled to considerable extent the aspiration of the consumer. The remedies under the CPA are in addition to remedy under other laws and not in derogation.[2] Remedy under other general laws continues along with CPA.

The Act came into force on 15 April 1987. Further, the act was amended in 1991, 1993 and 2002 to make wider application and more effective.[3] CPA defines consumer, service, consumer dispute, deficiency, defect, restrictive trade practice and unfair trade practices. Act is deserver to be appreciated because sale of goods and service by public under taking is also not spared along with co-operative society and private sector. CPA has provided the three qusi-judical authority with well-defined jurisdiction with appeal system to adjudicate the consumer dispute. Consumer can present the case before the authority without hiring advocate. Registered Consumer association and state is empowered to file case on behalf of consumer.

Who is consumer?

Consumer means any person who

1.      Buys any goods for consideration that has been paid or promised or partly paid and partly promised or under any system of differed payment.

2.      Includes any user of such goods other than the buyer when such use is made with consent of buyer.

3.      Does not include a person who obtains goods for resale or for any commercial purpose. Commercial purpose does not include use of goods by buyer for earning his livelihood by way of self-employment.[4]

 Consumer may be either natural or legal person whether registered or unregistered including co-operative society. Consumer may be person of any age and need not be sound-minded person, where as in Contract Act and Sale of goods Act the consumer has to be major and sound-minded person because the transactions between the buyer and seller is governed by principles of contract. Consumer definition is not confined to the buyer himself it includes person who uses goods with the consent of buyer. For example. Relatives of buyer, friends of buyer. Consideration for goods may be in any kind not necessarily in cash and need not be adequate and need not be tendered immediately also. CPA covers variety of transactions like sale of goods for goods, sale of goods for service, and omission as consideration for goods. Under sale of Goods Act, the consideration for sale is price so the Act has very limited application,[5] where as in CPA consideration is not defined in terms of money. The well settled unambiguous definition of consideration of Contract Act is made applicable.[6] However, Dr V.K. Agrwal in his book suggested that the word consideration is confusing and it should be replaced by price or money.[7] Author submits that it is not right suggestion other wise it would exclude variety of transaction in the market and makes limited application of act.

The term consumer does not include a person who buys goods for resale and commercial purpose. Consumer means the person who is ultimate user or end in himself. Commercial purpose is not defined but explanation is added by way of amendment in 1991. Commercial purpose does not include person who buys goods and uses for earning his livelihood by means of self-employment. A person purchases taxi, runs taxi and earns his livelihood by way of self-employment is consumer and not considered as commercial purpose. The Act has differentiated between the person who buys goods for resale and commercial purpose. Incase of commercial purpose, the person who buys goods and by using such goods earns his livelihood is called consumer and others who uses goods in large scale and earns more money is not consumer. Such classification in commercial purpose is reasonable and appreciable. The same logic should have applied in case of resale. Main employment in India whether rural or urban area is small ‘kirani’ shop where goods are resold. Here also the owner of ‘kirani’ shop instead of using the goods merely sells good to earn his livelihood is also self-employment but he is not considered as consumer so he has been treated differently which is harsh. Equal protection of law is integrated doctrine of equality. Benefits of CPA is offered to small earner on self-employment under the commercial purpose and it is denied to other small earners on the self-employment basis in resale is hard to digest. Use of goods must include resale of goods for self-employment.

The second category of consumer is related to the hire or user of service. Consumer for the purpose of service means any person who

1.      Hires or avails of any service for consideration that has been paid or promised or partly paid and partly promised or under any system of differed payment.

2.      Includes any beneficiary of such service other than hirer, when such service is used with the consent of the hirer.

3.      Does not include a person who avails of such service free of charge, under contract of personal service and for any commercial purpose. Commercial purpose does not include a person who availed service for earning his livelihood by way of self-employment.

Consideration, tax or fee.

Utilize the benefit of the CPA the person must have offered the consideration for goods or service. One third of India’s population lives below poverty line and depends upon goods and service rendered by the State. State being welfare has certain obligation to uplift the poor people by implementing social welfare scheme. The cost of such goods and service is incurred by the state fund that is collected from the people by way of tax. Naturally, the service and goods offered to such person by the state is not free but paid one. Even though the person has not paid consideration individually, yet he has to be considered as consumer under the act. The question before Supreme Court in Indian Medical Association V. V.P. Shanta and others [8]whether the service rendered to the poor people in the government hospital at free of cost is covered under the Act, Supreme Court answered negatively. The Supreme Court differentiated between fee and tax, consideration under the CPA has to be fee not tax.[9] The distinction between a tax and fee lies primarily in the fact that tax is levied as part of common burden while a fee is a payment for special benefit or privilege.[10] The patient in the government hospital is not consumer because he is not paid the consideration. On the other hand, for private hospital Supreme Court held that where the hospital is charging fee for some patients and not charging to some other patients, the patient to whom the free service is offered is called the consumer because his service expenses generally met from the other affluent patient’s expenses. The Supreme Court observed that,[11]

           To hold otherwise would mean that protection of the act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result … We are of the view in such a situation the persons belonging to poor class who are provided service free of charge are the beneficiaries of the service, which is hired or availed of by the paying class.

Supreme Court rightly appreciated that CPA is enacted with object of protect the poor consumer and any contrary interpretation would result in injustice. Nevertheless, right now, it restricted this philosophy to the hospital that is offering service with cost and free of cost to the rich patient and poor patient respectively.[12] The Supreme Court might have thought that the time is not ripe to extend the CPA to the persons who are getting the goods and service from the government on the basis of tax as  consideration otherwise it would leads to opening of the flood gates of consumer cases.

The Supreme  Court has expressed that all doctors whether government or private have total obligation to extend medical aid to the injured immediately to preserve his life without waiting legal formalities to be complied.[13] In Paschin Bang Khet Mazdoor Samati v. state of W.B., the Supreme Court has held that denial of medical aid by government hospitals to injured person amounts to violation of right to life under article 21.[14] Preservation of human life is of paramount importance. Failure on the part of governmental hospital to provide timely medical treatment to person in need of such treatment results in violation of his right to life guaranteed under article 21 and court could award compensation also to poor victim.[15] In Kirloskar Brothers Ltd v. Employees, State Insurance Corp. Supreme Court further extended this philosophy by holding that right to health is fundamental right of worker, which can be enforced not only against government but against the private industry also.[16] The adventurous path taken by the Supreme Court in protecting the poor patient’s right under the shelter of Article 21 sounds sweet and deserves to be applauded. 

The grim reality is that this fundamental right has been observed more in breaches than in observance because of lack of effective enforcing machinery. The CPA has filled this gap by providing efficient and effective enforcing machinery, which will makes the fundament rights are real and meaningful to the poor persons. Basic principles of interpretation guide courts to interpret the social welfare legislation in the widest sense. Therefore, the people should not be deprived by the benefit given by the act.[17] On these premises, consideration under the CPA has to be interpreted, as fee as well as tax. Such interpretation would further enlarge scope and application of act, which is just and rational. Until that, the CPA has better protected the consumers right is half-truth.

 District forums are established at each district having pecuniary jurisdiction of Rs 20 lakh which, easily accessible and less expensive for consumer to file complaint under the act. The cost service of housing, insurance, finance and other estate business at the district places has scaled up and generally cross more than 20 lakh, under such circumstances the pecuniary jurisdiction of district forum need to be enhanced otherwise customer has to go to capital to file complaint that is expensive and inconvenient.

Consumer can file complaint against any unfair trade practice or restrictive trade Patrice adopted by the trader and defects in the goods sold by trader and deficiency in the service. Trader means the person who sells goods or distributes goods and includes the manufacturer of the goods. Consumer can file complaint not only against the seller but also against the manufacturer because the remedies against manufacturer is effective than remedies against the seller which is very important development in the CPA. This section negates the doctrine of privity of contract of Contract Act and Sale of goods Act that has caused considerable injustice to buyer in the earlier days.

Seller is under obligation to sell the goods that are free from the defects and in case of service, free from the deficiency that makes the doctrine of caveat emptor is dead letter. Now seller has to careful while selling the goods rather than buyer is careful while purchasing the goods.

Consumer Protection Act protects the consumer from the defects in the goods and service does not protect form the dangerous premises where the goods are sold. Seller in either shop or office sells goods and service. Naturally, the shop and office must be safe for consumer. The moment consumer enters the premises of seller his safety has to be considered. Suppose consumer suffers injury because of slippery of floor, defects in the rack of goods, or fan falls on him under these circumstances the consumer has no remedy under the Consumer protection Act. CPA has taken care of defects in the goods and service but not the defects in the premises where the goods and service is sold. There fore, protection of consumer rights under CPA is incomplete. The consumer suffers any injury because of danger in the premises of shop or office, naturally the seller being occupier of the premises held liable under the Tort but not under Consumer Protection Act. Safety of the consumer against danger premises in which the goods or service is sold should have been provided in the Consumer protection Act. Omission of this is serious lapse in Consumer Protection Act in protecting the consumer rights.

Conclusion.

Undoubtedly, the Consumer protection Act is hallmark in the protection of consumer rights and our legislator is second to none in enacting such kind of laws. If enactment of legislation were parameter for evaluating the civilization then India would have been best-civilized nation. Law needs to be implemented and enforced to achieve desired results in which India has failed miserably. No doubt, the act has fulfilled its objectives to a considerable extent but Indian legal system has to go long way in protecting the consumer rights in real and meaning full manner. The government does not provide the sufficient funds to consumer authority to function in efficient manner. Shortage of staff and equipment is common feature of consumer forums. The success of the consumer protection would depend on the development and establishment of strong board based consumer organizations at the grass root level. Our consumer organization is financially weak because neither the government provides sufficient fund nor consumer contributes. Non-government consumer organization finds very difficult to educate consumer and institute the complaint the before the authority. The ignorance of the Indian consumer of their rights and remedies is the single major obstacle in the growth of consumer movement. Affluent and educated consumer is not vibrant because of their negligence or indifferent attitude. Unless the consumer changes his attitude towards their rights, the law can do little.  Mass education of the consumer is need of hour to make them conscious of their rights. Looking towards the illiteracy, ignorance, poverty, and backwardness of consumer, there is lot of work to be done to create good and healthy environment and protect the rights and privileges of consumers otherwise the protection of consumer rights will remain as distant dreams.

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* S.G. Goudappanavar, lecturer, S.C. Nandimath Law College, Bagalkot, Karnataka.

[1] Agarwal, V. K. Consumer Protection Law and Practice, [5^th Ed,] New Delhi: B.L.H Publishers Distributors Pvt, Ltd. [2003]. P.10.

[2] See, Consumer Protection Act, 1986. Sec, 3.

[3] Agarwal, V.K. op ,cit, pp.12-13.

[4] See, Consumer Protection Act, sec,2[1] [d] sub clause [I]

[5] See, Sale of Goods Act, 1930, Sec, 4.

[6] See, Indian Contract Act 1872, Sec, 2[d].

[7] Agarwal, V.K. op ,cit, p.81.

[8] [1995] III CPR 412 (SC)

[9] Ibid.

[10] Southern Pharmaceutical and Chemicals V. State of Kerala. [1982] 2 SCR 519.

[11] [1995] III CPR 412 at 427.

[12] Ibid.

[13] Paramananda Katara v. Union of India, AIR 1989 SC 2039.

[14] [1996] 4 SCC 37.

[15] Ibid.

[16] [1996] 2 SCC 1225.

[17] Justice Sing, G.P. Principles of Statutory Interpretation, [9^th Ed.], New Delhi:Wadha and Company Nagapur, [2005].p.733.

Crime and Morality

Crime and morality*

Criminal law is absolutely essential in a society for maintaining law and order. Criminal law has to be strong enough both in its contents as well as in its implementation, without being oppressive. It is an interest in the general safety, long recognized legally in the maxim that the safety of the people is the highest law.[1] The central core of criminal law in rights of persons –not rights of social order, and not welfare of criminal.[2] The criminal law must identify which conduct should be brought within its ambit. On what basis this decision is to be made.

Criminal law and morality.

Natural law roots lies in the realm of ethics. There have been different doctrines of natural law at different points of time having common principle that, there are objective moral principals which can be discovered by human reason.[3] ‘Lex injusta non est lex’ doctrine says man made laws which conflict these principles are not valid laws.[4] Law should prohibit conduct simply because it is immoral. Undoubtedly Obedience to law is moral concept and grand norm of every legal system which is not absolute but conditional. The world ‘morality’ and all other associated or nearly synonymous terms like ‘ethics’, have their own area of vagueness or ‘open texture’.[5] There are certain forms of principles which some would rank as moral and which others would not. Content of natural law are not precise because they based on value which requires analysis and interpretation and  difficult to resolve whose interpretation as to moral values to be accepted. Translating such moral principles into specific code is hilarious task of legislators and some time is difficult to achieve it.

Positive school of thought believes in the laws of human being  than laws of God. Permitting each individual to interpret the law according to his own moral principles result in to virtual anarchy in the society.  That’s why the various authors of legal positivism does not recognize  existence of law necessarily connected with morality. The existence of law one thing: its merit and demerit another said by Austin.[6] Natural law belief that, ‘IS’ reducible from ‘OUGHT’ is very simple fallacy.[7] Under this school Crime necessarily creation of sovereign consisting of those acts which are specially prohibited by criminal law under threat of punishment. Merit of this school lies in its precision, its knowability and its predictability which are contrast to Natural law’s vagueness and uncertainty.[8] Another added advantage is practicable application of law to the  society of diverse races, religions, classes and cultures.

Separation of law from morality for the sake of certainty has inherent danger of its abuse leads to absolutism which is likely to cause great injustice to the people. Nazi regime under the great Hitler rule penetrated horrible injustice, torture and death of innocent people in the name of  famous positivist slogan ‘Law is Law’[Gesetz als Gesetz].[9]Germany naturalist Gustav Radbruch was positivist until the Nazi tyranny said that no positive enactment or statue however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a given legal system could be valid if it contravened basic principles of morality.[10]It would conclude that a law clearly offending against these elementary principles was void and therefore not binding.

Criminal law is neither exclusive domain of natural law nor positive law but blend of both thoughts. Positivist are not anti-thesis to morality. Bentham has accepted the ethics only after empirical test which are found to be useful to society.  Moral principles are emerged out of  long practice and usage which are bound to be beneficial otherwise people wound not have accepted it. There are certain customs based on the superstitions and belief which are either given up or banned by the law because today’s society is more educated or matured.

H L A Hart another renewed critics of natural theory admits in his concept of law that, a legal system must exhibit some specific conformity with morality or justice.[11]  Without  minimum content of morality  law can not sustain the existence of society.[12] Criminal law reflects the morality of  society but the question is  to what extent. This is the precise question answered by the wolfenden committee under chairmanship of Sir Johan Wolfenden which was published in 1957. The committee said “There must be remain a realm of private morality and immorality which is, in brief and crude terms, not the law business”[13]   

   Lord Devlin criticized the committee report. Lord Devlin has described morality is base of society structure and fundamental agreement about good and evil. This common thought holds society together otherwise society would crumble.[14]  The justification for the enforcement of this recognized morality is simply that the law may be used to preserve any thing essential to a society’s existence. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration.[15]  Immoral acts are likely to cause intolerance, indignation and disgust.[16]

Hart agreed with  Wolfenden committee and disagreed with Devlin. Hart denies that society need to have shared every morality in the sense of Devlin. Every society must have minimum morality based on the minimum content of natural law to which every one subscribe otherwise coherence of society is difficult to sustain and in respect of rest of moralities a individual has freedom either to share or have his own morality.[17] The society  consisting of different ethnic, religion , race and caste is called pluralistic and claim that all of a society’s morality “ forms a single seamless web” would be extravagant.[18] The permitting of activities which the majority feels as immoral is positively beneficial because it is possible to prove that majority may be wrong and ‘deviant’ behavior provides opportunity for taking more informed judgments.[19] Cases like Abortions, Homosexuality, Surrogate mother, Gay marriages and euthanasia  considered to be immoral but now legalized because of social change which is considered to be more diversified moral than shared moral. Hart preferred  the disintegration of  such society whose morality was based on retrograde principles like hatred than its existence.[20] 

 House of Lords in Director of Public Prosecution v. Shaw influenced by Devlin thought held that , the court has“ a residual powers to defend the moral welfare of the state”[21] Devlin’s wave had short life. In 1967, the sexual Offence Act based on the recommendation of the Report of the Wolfenden committee decriminalized the homosexuality in private place among adults.  Morality and therefore criminal law, cannot be static in a society that depends on itself as the measure of its own standard. It is therefore, probably largely correct, to say that an act is punished as a crime because it was thought to be a serious threat to society at the time when the legislation was passed.

Criminal law and liberty.

The above discussion suggests that the criminal law must enforce the public morality not the private morality. Threshold line between private morality and public morality to some extent can be made out of great utilitarian Stuart Mill’s theory of harm principles. Johan Stuart Mill in his Essays on Liberty wrote:

         “ That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant”[22]

Mill advocated that the human conduct which are harmful to others should be guiding principles for crimes and the act which is harmful himself physically or morally could never be subject matter of crime because he who consents suffers no injury. This privilege, he calls it as liberty where the individual has absolute freedom to do as he likes in which intervention of criminal law is unwarranted otherwise the greater harm could be caused than prevention of harm. He further clarifies this principles of utility justifies intervention of law by way of exception in case of minors and venerable people  because they aren’t enough matured to take judgment or their consent can  be easily obtained. Mill’s liberty theory is derived from the Bentham’s  doctrine of utility

          Bentham’s logic that self harm could not be subject of crime because  every person is the best judge of his own interest and no man will consent to what he thinks hurtful to himself.[23] Message of Mill is  clear that law should enforce the public morality, leave the private morality exculvesly in the domain of individuals and harm to others is dividing line between these two. The concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as whole.[24] Married couples  right to have sex with devices of contraception or without in the space of martial bed room is to be decided by couples not by law.[25] Same reason was extended to unmarried  partners sex.[26]The right of privacy thus has been held to protect a “ private space in which man may become and remain himself”[27] In Jane Roe v. Wade USA Supreme Court struck down Texas criminal Abortion Statues which prohibits abortions except in saving the life of mother was unconstitutional.[28]

 In Lawrence v. Texas, US Supreme Court decriminalized the homosexuality between two consented adult in private place.[29] Delhi High Court held that Homosexuality is not illegal.[30] Liberal’s assertion that the harm to themselves would be greater deterrent than punishment. Doctrine of liberty of Mill’s looks sound and rational, yet number of liberal’s expressed their dissent saying that the criminal law has role in protecting individuals from themselves. Consent theory failed to answer why  adultery, bigamy and  incest acts are made offences. Mill’s theory  is useful in the area of limited adult sex and minor offences.                                                                                                                                                                                                                                            

Hart rejected the  Mill’s theory  and said doctrine of paternalism the protection of people against themselves is a perfect coherent policy which denies the defense of consent in case of homicide and assault.[31] Sir James FitzJames Stephen attacked the Mill theory saying that no clear line could be drawn between acts which harmed others and acts which harmed himself. Narcotic drugs, Alcohol consumption, gambling  and attempt commit suicide, and Euthanasia does not effect actor but effects his family and society.  Moreover  societies interest over the well being of its members should get priority over the interest of individual.[32] In case like incest, adultery and bigamy offences Lord Devlin’s phrases like “ intolerance, indignation, and disgust” are useful to condemn those acts even though those conducts does not harm others.

                                           Conclusion.

Immoral Act like, pre-marriage sex,  abortions, live in companion, surrogate mother and home sexuality reflects the value of society is not  conservative or traditional but of more reformed, matured, educated and tolerant. Natural theory of law would not be sole base for defining  crime. There are immoral acts which are not prohibited and certain moral acts which are not recognized as legal, tells us crime can not be built upon natural theory. But that does not mean that moral is irrelevant otherwise risking the legal system into instrument of oppression. Neither State is tutor of morality  of Devlin theory  would be welcomed by people in Toto nor the  crime is truly product of positive law would be accepted. Hart’s blend theory of minimum content of natural law with positive law would be more appropriate. Basic value or universal value of morality embraced by the people on the premises that these are essential for existence and continuation of society should be yard stick for sovereign to make law. What constitutes and what not constitutes basic moral value can not be left to the common peoples  determination of jury box as suggested by Devlin because morality is very sensitive and complex issue, unless it withstand the  test of criticisms based on the rationality and generality requires experts opinion. Acceptance of experts of wolfenden committee report on Homosexuality and rejecting of  the Shaw case by the  United Kingdom government by way of amending the Sexual offence act 1967 which decriminalizes the homosexuality sent message that law relation with morality is not the lay man’s cup of tea. Excluding the private morality from the concept of law leaves scope of Individual autonomous is healthy sign of accommodating liberty without which society would not have progressed. Notions of social morality are inherently subjective and the criminal law can not be used to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive.[33] Aristotelian’s concept of natural justice and conventional justice would better explain morality relation with of criminal law in contemporary society . Natural justice values are basic to which every one subscribes, like prohibition of murder, rape etc, where as conventional justice the society may decide either this way or that way, like homosexuality, abortions suicide etc.[34]  German natural law  philosopher Stammler’s variable content of natural law in relation with time, place and circumstances leaves more room  for variety and diversity for criminal law.[35]

Stuart Mill’s theory of liberty and Bentham’s utility theory based on the harm to others would be for from perfection. Utility theory may provides some insight in respect of sexual acts and minor injurious but clueless for other offences. Decriminalization of prostitution, gambling, and alcoholism are justified because these minor harm would threaten existence of society. Same analysis can not be applied in respect bigamy, incest acts and  dangerous narcotic drugs. Marriage and family institutions would be destructed if bigamy is decriminalized even though bigamy is based on consent. Society ever never accepts  heinous, outrageous, intolerable incest acts on the consent theory, that’s why most of the legal system prohibited the marriage between certain relations. Argentina’s incest case worst than of Fritizl of Austria.[36] Entire civilized nations shocked and stunned when it heard,62 years aged father had sex with his own daughter for nearly 30 years and fathered 10 children who was convicted for life imprisonment. Even if the free consent of the daughter and mother of the daughter would not have made difference. Narcotic drugs like opium, Brown sugar and Heroine have ruined the young generations of so many states which forced the state to ban them. Bentham’s theory man is best judge of his own and  does not consent which is harmful to him does not work in case of addicted peoples. There is always a reason against every coercive law since law can not be made except at the expense of liberty, if there is compelling or contrary reason against this, liberty ought to yield to consideration of the general security.[37] State intervention in the form of banning the narcotic drugs is justifiable because security of those persons who are addicted to dangerous drugs is more important than their liberty. These state of  affairs of society compels state to acknowledges the consent theory in narrow sense than wider. Harts doctrine of paternalism which justifies intervention of law to prevent harm to himself endorses the Criminal law nature which is harmonious with liberty. 

---

* S.G.Goudappanavar. Lecturer, S.C. Nandimath Law College. Bagalkot. Karnataka. 587101.

[1] Roscoe Pound.[1972].Criminal Justice in America. New York: Da Capo Press. p.7.

[2] Macklin Fleming.[1978].Of Crimes and Rights. New York:W.W.Norton&Company.Inc.p.84.

[3] Freeman,M.D.A.[2001].Lloyd’s Introduction to Jurisprudence,(17^th Ed.)London: Sweet & Maxwell Ltd.p.90.

[4] Hart,H.L.A.,[2001].The Concept of Law,(2^nd Ed.)New Dehli:Oxferd University Press.p.156.

[5] Ibid. p.168.

[6] Ibid.p.207.

[7] Hart,H.L.A., op,cit., p.187.

[8] Macklin Fleming, op,cit., p.20.

[9]Hart,H.L.A[1983]. Essays In Jurisprudence and Philosophy. New York: Oxford University Press.p.73.

[10] Ibid, p. 74.

[11] Hart,H.L.A.op, cit., supra f n,4.p.185.

[12] Ibid., p.193.

[13] Wolfenden Committee Report [1957], Report of the Committee on Homosexual Offences and Prostitution, Cmd 247, London: HMSO.

[14]  Devlin, P.[1965]. Enforcement of Morals. Oxford: Oxford University Press. pp 9-11.

[15] Ibid, p.13.

[16] Ronald Dworkin, [1999] Taking Rights Seriously, Delhi: Universal Law Publishing Co.Pvt.Ltd.p.242.

[17]Harris,J.W.[1997].Legal Philosophies,(2^nd Ed.)London:Butterworths.p.140.

[18] Sushila Rao, Decriminalizing Sexual Preference: Should Section 377 of The Indian Penal Code Be Repealed?. Indian Socio-Legal Journal.2007.p.85.

[19] Harris,J.W. op, cit.,p.51.

[20] Hart,H.L.A [1963] Law, Liberty, and Morality. Oxford: Oxford University Press.  pp.21-22.

[21]  [1962] A C 220.

[22] Mill, J.S.[1993] On Liberty 13 S. Collin ed, Cambridge: Cambridge University Press.

[23] Jeremy Bentham,[1995]. The Theory of Legislation. Bombay: N.M. Tripathi  Private Ltd. p.164.

[24] Thornburgh v. American college of O and G.476 US 747 [1986].

[25] Griswold v. State of Connecticut, 381 US 479 [1965].

[26] Eisentadt v. Baired, 405 US 438 [1972].

[27]Naz Foundation v. Government of NCT of Delhi and others. [WP [C] 7455/2001].p.34.

[28] 410 US 113 [1973].

[29] 539 US 558 [2003]

[30] See, supr f n,27.

[31]Hart,H.L.A.op,cit.,supr f n. 20.

[32] Roscoe Pound,[1998]. An Introduction to the Philosophy of Law. Delhi: Universal Law Publishing Co.Pvt.Ltd.p.33.

[33] S. Khushboo v. Kanniammal. [2010] 5 SCC,p,620.

[34]Edgar Bodenheimer, [2001]. Jurisprudence. Delhi: Universal Law Publishing Co.Pvt.Ltd. p.9.

[35] Freeman,M.D.A. op, cit.,.p.93.

[36] www.abc.netau/news/stories. visited on 13-12-2010.

[37] Jeremy Bentham, op,cit., p.55.