Report No. 29
45. Line of division thin.-Sometimes, notwithstanding that an act is immoral, it may be necessary to put it outside the criminal law because it is difficult to enforce a law punishing it. The observations of an eminent judge1 are of interest:-
"The line that divides the criminal law from the moral is not determinable by the application of any clear-cut principle. It is like a line that divides land and sea, a coastline of irregularities and indentations. There are gaps and promontories, such as adultery and fornication, which the law has for centuries left substantially untouched. Adultery of the sort that breaks up marriage seems to me to be just as harmful to the social fabric as homo-sexuality or bigamy. The only ground for putting it outside the criminal law is that a law which made it a crime would be too difficult to enforce; it is too generally regarded as a human weakness not suitably punished by imprisonment.
All that the law can do with fornication is to act against its worst manifestations; there is a general abhorrence of the commercialization of vice, and that sentiment gives strength to the law against brothels and immoral earnings. There is no logic to be found in this. The boundary between the criminal law and the moral law is fixed by balancing in the case of each particular crime the pros and cons of legal enforcement in accordance with the sort of considerations I have been outlining".
1. Deva-1 Enforamen t of Morals, (1965), pp. 21 and 22.
46. Function of criminal law and moral law compared.-The same eminent Judge1 has made the point about the proper function of the criminal law, as compared with the moral law, in these words:-
"I have spoken of the criminal law as dealing with the minimum standards of human conduct and the moral law with the maximum. The instrument of the criminal law is punishment; those of the moral law are teaching, training, and exhortation. If the whole dead weight of sin were ever to be allowed to fall upon the law, it could not take the strain."
1. Devlin Enforcement of Morals, (1965), p. 23.
47. Analysis of anti-social etc. offences.-In the course of our deliberations, we tried to analyse the common characteristics of the offences in question1. Many of the offences seem to have the following features in common:-
(a) the offences are committed by the upper classes of society;
(b) those upper classes themselves set the moral standards of society, and hence a serious view is not taken of these offences;
(c) the victims of the offences are unascertainable persons (usually, the State or the community), as contrasted with the majority of the offences under the Indian Penal Code, where, in most cases, the victim is an ascertained individual.
But all these features are not shared by each of the offences (e.g. theft of public property and offences relating to taxes). Moreover, some of the offences-e.g. theft of public property-are, even now, punishable under the Indian Penal Code.
1. Para. 2, supra.