SPECIAL ASSIGNMENT OF CRITICAL ESSAYS :

LEGAL METHOD

SUBMITTED BY :

Simran Toppo
ID No. 016/2016/1454
Semester I, B.A. L.L.B (Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

ATAL NAGAR, CHHATTISGARH
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SACE – I

Various Philosophers have given different views on “Sources of Law”. Their approach to
ascertain the sources of law were also different. However, almost of them, be it, Holland,
Rupert Cross, Austin, Salmond etc., all of them have included – Custom and Precedent as
the sources of law.

For the sake of this question, we shall confine ourselves to various jurisprudential aspects of
Precedent.

PART A OF THE QUESTION

 MEANING OF PRECEDENT

Having discussed the concept of Custom, we shall now discuss the concept of Precedent and will
try to ascertain the elements of Precedent and then, we shall find out if all the elements of
Precedent are binding.

But before proceeding further, it is very important to understand the meaning of Precedent.

 Meaning

Keeton said that “A Judicial Precedent is a Judicial decision to which authority has in some
measure been attached.”

 PRECEDENT AS THE SOURCE OF LAW

Keeton considered Precedent as a very important source of law.

Blackstone said – “For it is an established rule to abide by former precedents, where the same
points come again in litigation…”

Cardozo said – “…I think that adherence to precedent should be the rule and not the
exception.”
 3

Salmond and Bentham often quoted the example of the Common Law of England to make us
realize the importance of Judicial Precedents as a source of law.

The primary function of Precedent is to Declare and Interpret Laws and Not to make Laws.
However, we have different views of various jurists and accordingly, we have two theories in
this regard –

a) Declaratory Theory

According to this view, judges only declare law.

In the words of Chief Justice Coke, “Judicial decisions are not a source of law but the best
proof of what the law is.”

Sir Mathew Hale, Blackstone and Dr. James Carter also support this theory.

In Rajeshwar Prasad V. State of WB1, Hidayatullah J also talked in similar line.

However, this has been criticized by various jurists like – Bentham, Austin, Salmond etc. They
think that judges do make/ alter laws. Austin went to the extent of saying this theory is a
“childish fiction employed by judges”.

b) Constitutive Theory

According to this theory, judges make laws.

This has been supported by various jurists like – Lord Bacon, Dicey etc.

Bishop Hoadly and Prof. Gray went a step in saying that judges are the true makers of law.

 What is the correct position?

Both the theories present two extremes. The correct view lies between the two theories.

As we all know, the Literal Rule of Interpretation is the first rule of interpretation.
However, there are certain instances where it becomes absolutely impossible to decide a case
through literal rule. For ex – When a law is silent on a particular issue; When the text of law

1
AIR 1965 SC 1887
 4

totally negates the objective of the law; When the literal rule would lead to unreasonable
decisions etc. It is at times like these, the judiciary becomes creative and deviates from the
Literal Rule and adopts Mischief Rule or Golden Rule. But, a judge cannot deviate from the
Literal Rule just like that. A strong reason must exist to justify that.

However, even in this case, it cannot resort to Judicial Overreach.

Justice R.F. Nariman’s remarked in Ms. Eera V. Govt. of NCT of Delhi2 - “The golden rule in
determining whether the Judiciary has crossed the Lakshman Rekha in the guise of interpreting
a statute is really whether a Judge has only ironed out the creases that he found in a statute in
the light of its object, or whether he has altered the material of which the Act is woven.”

Prof. Allen, Justice Cardozo and Justice Holmes also held similar views.

 BASIS OF THE AUTHORITY OF PRECEDENT

Precedents derive their authority from the Doctrine of Stare Decisis.

According to this doctrine, a principle of law which has become settled by a series of decisions is
generally binding on the courts and should be followed in similar cases.

This doctrine is recognized in India under Art. 141 of the Constitution.

PART B OF THE QUESTION

 ELEMENTS OF PRECEDENT

Having understood the basics of Precedent, we can now discuss the Elements of Precedent.

It has two elements –

Ratio Decidendi Obiter Dicta

2
Criminal Appeal No. 1217-1219 of 2016
 5

In ADM Jabalpur V. Shivkant Shukla3 and also in State of Haryana V. Ranbir4 , it was
clarified that “the statements which are not part of the ratio decidendi constitute obiter dicta”.
However, only Ratio Decidendi is authoritative and carries the force of law. Obiter Dicta only
has a persuasive value. Lord Abinger talked about the high persuasive value of Obiter Dicta.
And many a times, the Obiter Dicta of one case becomes the Ratio Decidendi of the other.

Salmond says – “A precedent is a judicial decision which contains in itself a principle. The
underlying principle which thus forms its authoritative element is often termed the Ratio
Decidenci.”

Now, at this point, it is equally important to find out the meaning of Obiter Dicta also.

Prof. Goodhart says that Obiter Dictum is – “a conclusion based on a fact the existence of
which has not been determined by the court.”
Professor Patterson defines Obiter Dictum as “a statement of law in the opinion which the
could not logically be a major premise of the selected facts of the decision”.
Talking about the authoritative value of Ratio Decidendi, the Supreme, in Court Director of
Settlements, A.P. V. M.R.Apparao 5 said that- “..an obiter may not have a binding precedent as
the observation was unnecessary for the decision pronounced, but even though an obiter may not
have a bind effect as a precedent, but it cannot be denied that it is of considerable weight.”
 TESTS TO FIND OUT RATIO DECIDENDI AND OBITER DICTA

For the reasons mentioned above, it is very important to distinguish between Ratio Decidendi
and Obiter Dicta. It is not easy as it seems as Lord Abinger said – “Dicta of highest degree of
persuasiveness may often, for all practical purposes, be indistinguishable from Ratio
Decidendi”.
There are various tests to determine Ratio Decidendi -
1. Wambaugh Test
This is also known as ‘Inversion Test’ and it was propounded by Eugene Wambaugh.
Inversion Test states that – First, one should negate the proposition of law which is put forward
in a judgment. If, the reversal would alter the actual decision, it is Ratio Decidendi. If that

3
1976 AIR SC 1207
4
(2006) 5 SCC167
5
AIR 2002 SC 1598
 6

reversal doesn’t affect the judgment, it is not a Ratio Decidendi. That means, it is an Obiter
Dicta.

2. Test to be followed when there is a decision of multiple judges

Justice Ved Prakash 6, Chairman of M.P. Law Commission in a presentation titled –

“Identification of Ratio in Precedent”, said that the determination of Ratio Decidendi is not
difficult if there is only one opinion or all the opinions are in consensus along with the reasoning.
However, in case of difference of opinion, the majority view on a particular point of law
would be Ratio Decidendi of that point.
Also, if suppose, judges have identical views but different reasonings then essentials of their
similar view would be considered as the Ratio Decidendi.
3. Goodhart’s Test
According to this test, “the ratio is to be determined by ascertaining the facts treated as material
by the Judge together with his decision on those facts.”
Hence, as per this test, determination of material facts according to the judge along with the
decision of the judge on that material fact is Ratio Decidendi and the rest is Obiter Dicta.
4. Salmond’s Test7
Salmond gives a test to determine Ratio which is as follows :
“First however, we must distinguish what a case decides generally and as against all the world
from what it decides between the parties themselves. What it decides generally is the ratio
decidendi or rule of law for which it is authority: what it decides between the parties includes far
more than just this.”
We can see, there are a lot of tests to determine Ratio. It cannot be determined by a single test,
its determination is an art and one can perfect that art only after practice.
But, none the less, the Wambaugh’s test is the most widely used tests to determine Ratio
Decidendi.

6
Justice Ved Prakash, Identification of Ratio in Precedent, National Judicial Academy
http://www.nja.nic.in/Concluded_Programmes/2019-20/SE-
05_2019_PPTs/1.Identification%20of%20Ratio%20In%20Precedent.pdf
7
Salmond, Salmond on Jurisprudence, 12th Edition, Page No. 174
 7

 APPLYING WAMBAUGH’S TEST IN SOME LANDMARK JUDGMENTS OF

INDIA

These are as follows –

1) Kesavananda Bharti V. State of Kerala8
Talking about landmark judgments, we have to this judgment first. The reasoning that – The
parliament can amend any constitutional provision by virtue of Article 368 but it cannot violate
the basic structure of the constitution. This was Ratio Decidendi of the case because if we will
not apply this reasoning, the judgment would be completely changed.
But, other things in the judgment like -
(a) Justice Hegde’s and Justice Mukherjea’s remark that there is a difference between
ordinary law and constitutional law.
(b) Various fundamental features (basic structure) according to the court etc.
These things, if not applied will not affect the judgment much. Hence, these are Obiter Dicta.

2) A.K. Gopalan V. State of Madras9

In this case, the ratio decidendi was – Law affecting life or personal liberty could not be
declared unconstitutional merely because it lacked natural justice or due procedure.

However, one of the Obiter Dictum of the case (which became the Ratio of Maneka Gandhi)
was Fazl Ali J’s dissenting opinion. He said - ‘procedure established by law’ in Article 21
implies “procedural due process”. Meaning thereby, there has to be procedural fairness. The law
cannot be arbitrary and unreasonable.
3) ADM Jabalpur V. Shivkant Shukla10
In this case, the ratio decidendi was – The Fundamental Rights are not available to citizens
during Emergency.

However, one of the Obiter Dictum of the case was – Justice H.R. Khanna’s dissenting
opinion. He said – “Rule of Law is the antithesis of arbitrariness….In every state the problem
arises of reconciling human rights with the requirements of public interest. Such harmonizing

8
AIR 1973 SC 1461
9
AIR 1950 SC 27
10
AIR 1976 SC 1207
 8

can only be attained by the existence of independent courts which can hold the balance
between citizen and the state and compel governments to conform to the law.”

 CONCLUSION

From these three case laws, we can get a fair idea how the elements of the Precedent. And, it is
indeed true that only the Ratio Decidendi is the authoritative part of the Precedent and the
remaining part i.e. Obiter Dicta carries only persuasive value.
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SACE – II

“Our judges have always kept their fingers delicately but firmly upon the pulse of accepted
morality of the day”

- C.K. Allen

This remarkable statement by a famous legal luminary, C.K. Allen precisely describes the
relationship between Law & Morals. To imagine both these things exclusive of each other is a
fallacy.

Morality has probably been the most subjective issue of all times. This subjectivity and
confusion remains even now. For some, the concept of “prostitution” is moral and for some,
even “girls keeping their hair open” is immoral. Also, it is not necessary that whatever the
majority is thinking is moral. Sometimes, the minority thinking is moral. Also, the standards of
morality change with time. What was considered immoral back in 80-90s is now considered
moral. For example – The act of hugging one’s partner in public place was considered immoral
back then but it is perfectly moral now.

Therefore, we can see how complicated these things are. It becomes complicated for the courts
also. And, the judgment of the court is also received in different ways by different people.
Therefore, I would talk about my personal opinion. I feel that our courts have always tried to
maintained the requisite amount of morality while pronouncing judgments but sometimes (as
will be seen later), it appeared that the court is trying to enforcing morality excessively and I
think that it was not a correct approach.
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PART A OF THE QUESTION

 WHAT IS LAW AND WHAT IS MORALITY?

Every philosopher had their own interpretation of the terms – ‘Law’ and ‘Morality’. Some if the
most important ones are as follows –

LAW

 The definitions of Law given by various thinkers are as follows –

- Blackstone: According to him – “Law in its most general and comprehensive sense signifies
a rule of action and is applied indiscriminately to all kinds of action, whether animate or
inanimate, rational or irrational..”
- Hegal: According to him – “The abstract expression of the general will existing in and for
itself”.
However, the major drawback of this definition is that it gives too much importance to the
general will and totally neglects the will of the sovereign.
- Ihering: According to him – “Law is the form of guarantee of the conditions of life of
society, assured by State’s power of constraint”.
However, the major drawback of this definition is that it treats law only as a means of
Social Control.
- Austin: This is one of the most celebrated definitions of Law. Austin belongs to the
Positivist School of Law and according to him – “Law is aggregate of rules set by men as
politically superior, or sovereign, to men as politically subject”.
Hence, the three ingredients of Austin’s definition are – Command of the Sovereign, Duty
and Santion. His theory of Law is also called ‘Imperative Theory of Law’.
 Criticisms
i) By Historical School – According to this school, so many laws existed even
before the concept of ‘Sovereign’ came into being. The source of those laws were
– Religion, Custom, Public Opinion etc.
Lord Bryce’s criticism was also on the similar lines.
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ii) By Salmond – The main Criticism of Salmond against Austin is that his theory
disregards the ethical elements in the law. According to him – “Law is not rigjht
alone, or might alone but the perfect union of the two”.
He also said that all laws are not commands. For e.g. Fundamental Duties
under Article 51A of the Constitution are not command per se but are like
recommendations which every individual must strive to follow.
iii) By Sir Henry Maine – According to him, it is not necessary that a Sovereign will
always run its administration by the law administered by himself. For e.g. he gave
the example of Maharaja Ranjit Singh who never made a law but used to run its
administration through the usages, customs etc.
iv) Purpose of Law ignored : According to Paton and Sir Henry Maine, Austin’s
definition ignores the very purpose of law i.e. to provide Justice.
v) Law does not come from the Sovereign everytime. For e.g. The judgments of
the Supreme Court have the force of law under Art. 141 of the Constitution of
India; Ordinance promulgated by the President under Article 123 of the
Constitution is a Law. If we see in both the cases, none of them are ‘Sovereign’.
- Salmond: Salmond is one of the most seasoned jurist in the history of mankind. According
to him – “Law is the body of principles recognized and applied by the State in the
administration of Justice”.
Basically, according to him, the true test of Law is its enforceability in the Courts.
 Criticisms
i) By Vinogradoff : According to him, Salmond’s definition negates the fact that a
Law has to be made before it can be applied by the Court.
ii) Not all laws are enforceable by the Courts. For e.g. Part IV of the Constitution
(DPSP) are not enforceable by the Constitution but are still Laws.
- Most apt definition suited to modern times : In my opinion, definition of HLA Hart is
best suited to modern times. According to him – “Law is the combination of primary rules of
obligation and secondary rules of recognition”. This law combines two extreme views of
Positivist school and Natural Law school and tries to bring a balance between the two.

Hence, we can say that Law may be the Command of the sovereign or it may also come into
existence without it such as – through Customs, Usages etc. However, the latter must be
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recognized by the Sovereign. For e.g. In India, Constitution is Sovereign and recognizes
Customs, Pre-Constitutional Laws, Ordinance etc. as a Law under Article 13.

 Classification of Law

The classification of Law can be depicted through the following graphical representation –

MORALITY

Having discussed the concept of Law in brief, we can now discuss what is Morality.

Various jurists have defined Morality in the following ways –

- Duguit : According to him – “Morals go on intrinsic value of conduct..”

- Paton : According to him – “Morals or Ethics is a study of the supreme good…”
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Basically, Morality reflects the collective conscience of the society. For e.g. In India, short
dresses worn by women is considered immoral, which might not be the case in American
Society.

PART B OF THE QUESTION

 INTER-RELATIONSHIP BETWEEN LAW AND MORALS

The relationship of “Law” and “Morals” has gone through a lot of twists and turns. From the
Ancient period to Modern period, the idea of “Law and Morals” has drastically changed.

In Ancient Period, there was no distinction between Law and Morals. At that time, concepts
such as “Natural rights”, “Natural Law” etc. gained prominence. The very foundation of those
concepts was “Morality”. Sooner, those moral principles were commanded as the law or
became the basis of law.

After that, during 19th Centre, there was complete separation of “Law” with “Morality” because
of various theories propounded by various jurists and specially by Austin when he boldly said –
“Law is the command of the sovereign.” Here, he emphasized that whatever the sovereign will
command, that will become the Law whether it is moral or immoral.

Their difference was vehemently advocated by jurists such as :

Vinogradoff – He said that “Law is clearly distinguishable from morality. The object of law is
the submission of the individual to the will of organized society while the tendency of morality is
to subject the individual to the dictates of his conscience.”

Pollock – “Though much ground is common to both, the subject-matter of law and ethics is not
the same. The field of legal rules of conduct does not coincide with that of moral rules and is not
included in it and the purposes for which they exist are different.”

According to G.W.Paton Law and Morals originated at the same, took the same path and after
that they took diverted paths.
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In 20th Century, another jurist, Kelsen, made a huge impact in the field of Jurisprudence by
saying that only “legal norms” are the subject matter of Jurisprudence, all the extraneous things
including Morals are excluded from the study of law.

However, after the two most misfortunate happenings in the history of mankind – World
War-I and World War-II, the importance of morals was again realized. Since then, morality is
never neglected. It may remain negligible but it may never become absent.

 Relationship between Law and Morals

After getting an understanding of the views of those jurists who said that Law and Morals are
separate, it is necessary to read the statements of those who correctly described the inter-
relationship between Law and Morals. These jurists are :

Stammler – He said that, jurisprudence depends much upon moral ideas as just law has need of
ethical doctrine for its complete realization.

Lord Mansfield – He said that “Law of England prohibits everything which is contra bonos
mores”.

However, the most correct position is reflected by the statement of C.K. Allen, “Our judges
have always kept their fingers delicately but firmly upon the pulse
of accepted morality of the day”.

Fingers of
Morals our judges
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The below two views are incorrect -

So, we can say that, the judiciary does not enforce morals neither too strictly like this :

Morals

Judges

Nor does the judiciary remain totally unconnected with the morals like this :

Judges

Morals

 ENFORCEMENT OF MORALS

Having understood the basic idea of the inter-relationship between “Law” and “Morality”, the
next important thing is to understand the jurisprudential aspect of Enforcement of Morality.

We can understand this topic broadly by understanding two approaches –

HART-DEVLIN DEBATE

This provides for –

a) Positive Morality Approach

b) Critical Morality Approach
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 Background

In recommending that private homosexual acts between consenting adults no longer be made
criminal, and in endorsing the existing law under which acts of prostitution were not in
themselves punishable, the 1957 Report of the Wolfenden Committee in England asserted that
unless crime is to be equated with sin, the law should not attempt to regulate all private morality.
The committee based its report on the statement by J.S.Mill

According to the committee – It is not the function of law to intervene in the private life of the
citizens or to seek to enforce any particular pattern of behavior.

Two years later, Lord Devlin delivered his now famous Maccabaean lecture in jurisprudence,
“The Enforcement of Morals.” In this lecture, and in a variety of other publications, he has taken
strong exception to the Millian stand taken in the Wolfenden report.

Lord Devlin was against the report and Prof. H.L.A. Hart was supporting the report.

 Positive Morality Approach

Lord Devlin doubted the Wolfenden Committee report. As a guide to enforcement of morals
through law, he asked 4 questions –

Que. 1. Whether the society has a right to pass a judgment on matters of moral norms or whether
that could be public morality or morals are a matter of public judgment?

Answer – Society has a right to pass a judgment on matters of moral norms because morals are
the cement of society.

Que. 2. If society has a right to pass a judgment on matters of morals, does it also have the right
to use the weapon of law to enforce it?

Answer – Yes

Que. 3. If so, is it to use the weapon of law in all cases or only in some cases

Answer – The subversion of vice is as much the law’s business as the suppression of subversive
activities.
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Que. 4. What principles can it apply to distinguish those situations.

Answers – While answering this question, he gives the following guidelines –

a) Maximum individual liberty is to be respected.

b) Law is concerned with minimum standard of conduct and not with Maximum standard of
behavior.
c) Only when it goes beyond the tolerance power of the study.

If a particular conduct is by popular standard regarded as immoral, then it is sufficient to justify

that particular conduct as punishable by law.

 Critical Morality Approach

This approach is given by professor H.L.A. Hart. According to him, some shared morality are
essential for the society. Certain core principles which form the basis of the society and are
essential for its survival, however at the same time, the morals have to be judged critically and
only then enforced. One has to examine the impact on individual rights and liberties and then
only enforce it.

In conclusion, we can say that Law and Morals cannot be separated. Even if we will look at the
two approaches, both of them do not segregate Law and Morals. The difference between the two
is that the former insists upon the importance of Morals more than the Law and that Law should
be framed according to the moral standard of the majority of the society. And in the latter
approach, the law should be framed according to the Morals but those Morals should be first
tested critically and their impact should be assessed and then Law should be made accordingly.

HART-FULLER DEBATE

This is another important debate with respect to the enforcement of Morality.

This was a debate between –

H.L.A. Hart (a Positivist) which held the view of Positive School of Law, according to which
Legal System is only concerned with Law (what is) and not Morality (what out to be)
 18

and

Lon L. Fuller (a Natural Law Theorist) which held the view of Natural Law School, according
to which Laws must contain an element of Morality in it.

Hart was however, in favour of ‘Minimum Content Theory of Natural Law’ i.e. he supported
that the influence of morality upon law must be absolute-minimum.

On the other hand, Fuller was of the view that, the element of morality in law is for preserving
the fidelity towards law itself and not for preserving moral principles. According to him, moral
input is already there in the legal system.

 WHAT HAS BEEN THE APPROACH OF INDIAN JUDICIARY TOWARDS

ENFORCING MORALS THROUGH LAW IN THE CONTEMPORARY TIMES

Our judiciary, in majority of times, has rendered judgments by keeping into account, the
requisite amount of morality. However, in some cases, it was seen that the judiciary was
adhering to an excessively high moral standard.

The power of the court to enforce morality majorly flows from – Article 19(2) of the
Constitution and Sections 292-294 of the Indian Penal Code.

Apart from these two, specific provisions of some special Acts also provide for this such as –
The Cinematograph Act, 1952; The Dramatic performances Act, 1876; The Customs Act, 1962;
The Post Office Act, 1898; The Indecent Representation of Women (Prohibition) Act, 1986 etc.

There are two landmark cases which provide for the test of “Decency” and “Morality”. As per
R V. Hicklin11, “The test of obscenity is whether the tendency of the matter charged as obscene
is to deprive and corrupt those whose minds are open to such immoral influences, and into
whose hands a publication of this sort is likely to fall.”

This case was later reiterated in India in case of Ranjit D. Udeshi V. State of Maharashtra12
where the apex court held the book, Lady Chatterley’s Lover as obscene.

11
LR 3 QB 360
12
AIR 1965 SC 881
 19

In case of Director General V. Anand Patwardhan13 , the apex court reversed the decision of the
government and allowed the telecast of a documentary film Father, Son and Holy War and also
laid down tests for morality. These are as follows :

a) “Whether the ‘average person, applying contemporary community standards’ would find
that the work, taken as a whole, appeals to the prurient interest;
b) Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
c) Whether the work, taken as a whole, lacks serious literacy, artistic, political or scientific
value.”

These were the cases which lay down the tests of “Morality”.

Now, I would be discussing some examples where the court enforced morality.

1) Landmark Judgments for the rights of LGBTQ community

In plethora of cases, the court has pronounced decisions for the LGBTQ community as per the
new moral standards of the society.

In Naz Foundation V. Govt. of NCT Delhi14, the court held that the LGBT community is
equally to entitled to fundamental rights and specifically Article 14,15 and 21.

In case of Navtej Singh Johar V. Union of India15, the apex court decriminalized S. 377 of the
IPC to the extent where it criminalized consensual sex between two consenting adults.

2) Movies

Movies are the most vulnerable form of art which are most likely to be restricted on the ground
of morality because movies create a huge impact on the viewers.

Earlier, scenes of the movie Bandit Queen became very controversial but fortunately, the court
in Bobby Art International V. Om Pal Singh Hoon16, did not restrict such an eye opening movie
because it was essential to show the level of torture which Phoolan Devi suffered.

13
AIR 2006 SC 3346
14
WP(C) No.7455/2001
15
W. P. (Crl.) No. 76 of 2016
 20

There are n number of such cases. Now, let us take a look at some recent cases.

The movie, Udta Punjab was heavily censored by the CBFC. Fortunately, in Phantom Films
Pvt. Ltd. V. The Central Board of Film Certification17 the Bombay High Court and the Punjab
& Haryana High Court came to rescue and they both overruled the excessive censors of the
CBFC. The Bombay HC allowed the release of the movie with just one cut i.e. the scene where a
character was shown urinating at the audience.18

The movie Padmavat19 was also under controversies. However, the apex court brushed aside all
the excessively high moral standards of some groups and allowed the release of the film.

There are so many cases and in all these cases, the Indian courts showed great sense of justice.
They took into account the context and the timeline.

3) Songs

The Punjab & Haryana High Court20 ordered the government to file a case against the rapper
Honey Singh for singing vulgar songs. The court came down heavily on him and asked everyone
to boycott such singers. This action was very much needed because he had sung bizarre songs
including a song named “Main Hoon Balatkari”.

4) Depictions

So many art forms have been banned by the court on the ground of morality and in majority of
the cases, it was necessary.

16
AIR 1996 SC 1846
17
[W.P. (L) No. 1529 of 2016]
18
BBC, Udta Punjab: India court overrules censor cuts to film, visited on 06/12/2021
https://www.bbc.com/news/world-asia-india-36518288
19
BBC, Padmavat: Controversial film cleared by India's top court, visited on 04/12/2021
https://www.bbc.com/news/world-asia-india-42732022
20
Hindustan Times, File case against Honey Singh, court tells Punjab govt, Visited on 04/12/2021
https://www.hindustantimes.com/chandigarh/file-case-against-honey-singh-court-tells-punjab-govt/story-
eaNFProIrAP2CggVzKojhK.html
 21

The classic example in this regard is the case of M.F. Husain V. Raj Kumar Pandey21, where
artist M.F.Husain depicted Bharatmata in the form of a nude woman and the court upheld it by
giving references to Kamasutra, Various interpretations, Artistic value etc.

5) Religious Feelings & Beliefs

In many cases, the courts have smashed the regressive and excessively high moral beliefs of
various religions. For example –

Sabrimala Case(Indian Young Lawyers Association V. The State of Kerala22 where the apex
court held that the temple’s practice of excluding women is unconstitutional.

Triple Talaq Case(Shayara Bano V. UOI)23 where the apex court held the practice of Triple
Talaq unconstitutional.

In case of Joseph Shine V. Union of India24, the court decriminalized adultery (S. 497 of IPC).

In the National Anthem case25, the apex court came down on those who endorse extreme
nationalism and moral policing in the name of national anthem. The apex court held that there is
no need to stand up at cinema to prove patriotism.

In all the above mentioned cases, the courts followed the critical morality approach.

 SOME RECENT BIZARRE CASES OF MORALITY ENFORCEMENT 26

While I totally applaud our courts to maintain the balance between the time and notions of
morality. There are some cases where the courts have taken unacceptable decisions and have
acted as regressive moral vigilantes.

21
2008 Cri LJ 4107 (Del)
22
[W.P. (Civil) No. 373 of 2006]
23
[W.P. (C) No. 118 of 2016]
24
W.P. (Criminal) No. 194 of 2017
25
NDTV, 'No Need To Stand At Cinema To Prove Patriotism': Supreme Court On Anthem, Visited On 05/12/2021
https://www.ndtv.com/india-news/no-need-for-anthem-at-cinema-for-patriotism-court-asks-centre-to-decide-
1766085
26
Avani Bansal, The ‘Ideal’ Indian Woman? Why Judiciary’s Remarks Are Perplexing, Visited on 05/12/2021
https://www.thequint.com/voices/women/who-is-an-ideal-indian-women-misogynistic-observations
 22

For Example - Justice Krishna S Dixit of the Karnataka High Court while pronouncing a
matter on anticipatory bail on the charges of rape on pretext of false promise of marriage, said
“It is unbecoming of an Indian woman to fall asleep after having been ravished”.

In another case, Justice Ajai Lamba and Justice Soumitra Saikia of the Gauhati High Court
while granting divorce to a couple said that “not wearing sindoor and bangles by woman shows
refusal to accept marriage.”

 CONCLUSION

We can see how Law and Morals are related. It is neither too excessive nor too remote but just to
the extent it is required.

The Indian Courts have, in most cases always maintained the balance commendably. And, they
have followed the Critical Morality approach.

However, in many cases, they came out as really regressive and extreme in enforcing morals and
that was not justified.
 23

REFERENCES

 Textbook
1. V.D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY, (EBC 2015)

 Articles

1. BBC, Udta Punjab: India court overrules censor cuts to film, visited on 06/12/2021
https://www.bbc.com/news/world-asia-india-36518288
2. BBC, Padmavat: Controversial film cleared by India's top court, visited on 04/12/2021
https://www.bbc.com/news/world-asia-india-42732022
3. Hindustan Times, File case against Honey Singh, court tells Punjab govt, Visited on
04/12/2021
https://www.hindustantimes.com/chandigarh/file-case-against-honey-singh-court-tells-punjab-
govt/story-eaNFProIrAP2CggVzKojhK.html
4. NDTV, 'No Need To Stand At Cinema To Prove Patriotism': Supreme Court On Anthem,
Visited On 05/12/2021
https://www.ndtv.com/india-news/no-need-for-anthem-at-cinema-for-patriotism-court-asks-
centre-to-decide-1766085
5. Avani Bansal, The ‘Ideal’ Indian Woman? Why Judiciary’s Remarks Are Perplexing, Visited
on 05/12/2021
https://www.thequint.com/voices/women/who-is-an-ideal-indian-women-misogynistic-
observations