[THREAD] Society, Morality, Law, Judiciary and Indian Dilemma.

Although, the discussion on such a topic would require a couple of books. I've tried to keep it as brief as possible.

The recent address by our Hon'ble PM, Shree Narendra Modi ji ( https://twitter.com/sunandavashisht/status/1335940335994888193?s=19) and
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issues cropping up and are bound to plague us further on issue of legislation, I belief that a discussion regarding it is in order.

THREAD begins:
Law and society are not two seperate entities but have a relationship of reciprocal causation, a set of rules prescribed by any /2

legal system is a matter of habit rather than individual conformity and these habits are guided by the general acceptance (which has become habitual to the majority) as bred in the society provided that the group of people who confirm to the general acceptance as in the /3

society were under same and similar conditions and it is in accordance of this general acceptance, which we may state as the current acceptable moral standards that gives birth to the legal system. Where the legal system frames news laws such habit is inducted through /4

deterrence or reward mechanisms.

This argument can be backed by applying it to a hypothetical scenario, a society where no written legal system is being provided through a governing authority, it is the general acceptance of their understanding of morality that guides the /5

implicit legal system, small villages are the best examples, where though legal system might be in place, it is largely through the general acceptance of the society as a whole of a moral code which provides for a model for acceptable behaviour. Such morals may come through /6

traditions or religious texts etc; however it is more the inertia of habit which guided such notions and a drastic change in the circumstances or knowledge of such a society is needed to shake them out of such inertia of habit.
However the whole of the society would not act in /7

conformity with the general acceptance and would be guided by their individual nature.

This non consistent human nature is affected by the change in circumstances and knowledge though incoherence is bred if generalization is taken into account.
Due to inconsistency in human /8

nature and thereby behaviour, certain individuals would develop traits and understanding which would not be consistent with the general acceptance and habits, on the basis of which a certain legal system is in place. Nonetheless, after a certain point of time these inconsistent/9

behaviours, which occur dues to change in circumstances, in knowledge, habitual adoption and the impressionability of the human nature, would lead to higher and higher cases of such inconsistencies and will over a period of time start breeding acceptance i.e. to say a habit /10

will come into force, at first reluctantly and later on readily a general acceptance of such behaviour will start to modify the society and the majority will become habitual to it and thereby affecting and changing in the legislation.

Ideally constitutional morality ought to /11

be the codification of the values held by all citizens in a polity. However, it shapes and changes them as well, a reciprocal causation. Where public public morality is a reflection of the moral values of the majority of the population (as expressed by the legislature), /12

constitutional morality not only reflects the majority’s values, but also modifies, changes and shapes them to accommodate them to make them part of our Constitution and vice-a-versa because of its large scale enforcement mechanisms and recognition given to it by the society /13

and What we see as constitutional morality was laid down by the consensus as to what is acceptable by the majority (in this aspect we will define majority as the most learned representatives of the society) as moral. Thus on the basis of above argument, it can be said that /14

and what we see as constitutional morality was laid down by the consensus as to what is acceptable by the majority (in this aspect we will define majority as the most learned representatives of the society) as moral. Thus on the basis of above argument, it can be said that /15

both public morality and constitutional morality are not mutually exclusive from one other, However any departure of the public morality, if gains momentum and is accepted by the majority and is represented by the learned representatives of the same majority (the concept of /16

leaned majority is of vital importance as it excludes any irregularities in acceptance of such change due to any misguided understanding), it will affect the constitutional morality and bring about a change.

One must also understand that judges are a part of the society and /17

are influenced by the opinions of the society and their own education as per their convention which has incused onto their minds due to the prevailing education and therefore it's false to represent judges as bias free or opinion free for that will never be the case. As any /18

society progresses and attitudes toward particular laws evolve, they can well be repealed, but these kinds of judgements are to be made by the people themselves, and it cannot be imposed by anyone. Repealing any provisions or making amendment to any provision such decision are/19

better made by the political branches of government with a democratically elected Legislature and Executive, as opposed to unelected judges. Laws that have been endorsed by a properly elected legislature are accorded legitimacy. Judiciary plays a very limited role in reviewing/20

the constitutionality of morally controversial laws and provisions, especially if they wish to engage in moral argument and reason and when it may move outside the scope of the prescribed mould of constitutionally acceptable definitions and thereby the power allotted to the /21

judiciary itself synonymizing public morality with a judicially-fashioned version of constitutional morality would lead to undermining the constitutional mandate of moral diversity. This analysis thus brings into perspective that judge made laws may not be in conformity with /22

the morality standard as represented by the society, if such ammendment does not appear in the legislation it may be so that the society does not deem a change necessary for it has yet not modified it's opinion sufficiently to bring about a change. Now if we apply it to the /23

NAZ foundation case and subsequently repeal of 377 by the 'Judiciary' and not the legislature implies that the behaviour is not yet acceptable by the majority, and a simple survey (not limited to the cities for villages constitute the majority population) would establish the /24

truth of it and it must also be understood that cities do not reflect the actual moral conviction of the society, the urban areas are much impressionable as is evident by it's rapid westernisation, whereas the village system is a cess pool of belief systems to the point of /25

being stubborn to favourable modification, nonetheless it is important to address and recognise the village systems as the actual standards and frame of reference for gauging the moral credence of the society.

Now addressing he Indian dilemma. It is must that we understand /26

that there does exist a problem of superimposition of western construct and ideas upon Indian Civilization which is a problem for the two civilisational developments are seperate and one can't be induced to provide solution for the others. This problem is of such a large /27

extent that even our own Constitution reflects the same, the GOI act of 1935 is largely replicated in our present constitution which fails to represent the Indian development. This is largely due to the people who held the position as representatives of public morality of the /28

Indian society were not entirely familiar with it and relied much on western understanding of the world. Furthermore this is a problem in our education system as well and the philosophical,sociological, political, psychological theories and ideas are imported and forced upon /29

a construct which is not the source of it and hence a mismatch, many of these ideas have been rejected in their birth land itself but we continue to use them. Our judges as well have been educated on this structure or are bound by this structure and this creates a strain on /30

the society which forces it to have an unnatural behaviour and contributes towards deterioration of the native Culture, Traditions and believe systems which is a cause of social unrest and extremely unproductive.

THREAD ends. n/n

I apologise for typing mistakes.