Friday, 11 January 2013
Subhash Goudappanavar: Comparative study of Indian and USA Constitution.
Subhash Goudappanavar: 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 len...
Thursday, 10 January 2013
Comparative study of Indian and USA 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 13th 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 26th November 1949 but officially adopted on 26th
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 America America 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.
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 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
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 20th 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 20th 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 3rd January. America 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.
Human Rights.
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. 97th 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
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 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.
Saturday, 22 December 2012
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 20th 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.
* S.G.
Goudappanavar, lecturer, S.C.
Nandimath Law
College
[1] Agarwal,
V. K. Consumer Protection Law and
Practice, [5th 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
[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, [9th Ed.], New Delhi :Wadha and
Company Nagapur, [2005].p.733.
Sunday, 16 September 2012
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
[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,(17th
Ed.)London : Sweet & Maxwell Ltd.p.90.
[4]
Hart,H.L.A.,[2001].The Concept of Law,(2nd Ed.)New Dehli:Oxferd University
[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
[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.
[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,(2nd 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.
[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
[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.
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