1.
Judicial Morality
Judicial morality refers to the ethical and moral standards that judges are expected to uphold
while interpreting and applying the law. It is a concept that blends legal reasoning with moral
considerations, ensuring that judicial decisions are not only legally sound but also morally
justifiable.
Key Aspects of Judicial Morality:
1. Impartiality and Integrity – Judges must remain unbiased and avoid conflicts of
interest.
2. Adherence to the Rule of Law – While moral considerations may play a role, judges
must interpret laws within the framework of established legal principles.
3. Balancing Legal Positivism and Natural Law – Judicial morality often involves
reconciling the positivist approach (laws as they are) with natural law principles (laws as
they ought to be).
4. Human Rights and Justice – Judges must ensure their rulings align with fundamental
human rights and constitutional values.
5. Judicial Activism vs. Restraint – Some argue that judicial morality allows for activism
(judges shaping the law based on moral grounds), while others believe in strict
interpretation without personal moral input.
Examples:
Kesavananda Bharati v. State of Kerala (1973) – The Supreme Court upheld the Basic
Structure Doctrine, ensuring moral justice within constitutional interpretation.
Naz Foundation v. Govt. of NCT of Delhi (2009) – Decriminalizing homosexuality
based on moral considerations of dignity and equality.
2. Moral and Semantic Questions Relating to a Judge’s Duty and Choice
1. Moral Questions: Should Judges Follow Law or Justice?
Judges often encounter situations where the law and morality conflict. Some key questions
include:
Should a judge apply an unjust law simply because it is legally valid?
Can a judge refuse to enforce a law that violates fundamental human rights?
Should personal morality influence judicial decisions?
Example: The Nazi Grudge Informer Case
The law under the Nazi regime required citizens to report traitors, but the court later held that
following such a law was immoral.
The judge had to decide whether to follow legal positivism (enforce the law as it is) or natural
law (reject the unjust law).
Example: Indian Judiciary and Moral Interpretation
In cases like Navtej Singh Johar v. Union of India (2018) (where Section 377 IPC was
decriminalized), the court ruled that criminalizing same-sex relations was morally unjust, despite
existing legal provisions.
2. Semantic Questions: How Should Judges Interpret Legal Language?
Legal language is often ambiguous, leading to disputes over how laws should be read and
applied. Judges must decide:
Literal vs. Purposive Interpretation: Should the judge interpret the words exactly as written
(literal approach) or look at the law’s broader purpose (purposive approach)?
How to handle vague legal terms: Words like "reasonable," "justice," and "public morality" lack
fixed definitions. Judges must choose the most appropriate meaning in a given case.
Example: "Right to Life" under Article 21 (Indian Constitution)
Does "right to life" mean only survival, or does it also include dignity, privacy, and freedom
from torture?
Courts have expanded its meaning (e.g., right to privacy in K.S. Puttaswamy case, 2017).
Example: Death Penalty Cases in India
The phrase “rarest of rare” (used to decide when the death penalty should be given) is not
clearly defined in law.
Judges must interpret what qualifies as “rarest of rare,” making it a semantic and moral
decision.
3. Moral Realism
Moral realism is a philosophical position asserting that moral facts and values exist
independently of human beliefs or perceptions. In the legal context, it suggests that morality is
not subjective but grounded in objective truths.
Key Theories of Moral Realism:
1. Cognitivism – Moral statements express objective truths that can be known.
2. Non-Relativism – Right and wrong are not merely social constructs but exist as real
principles.
3. Moral Facts Exist Independently – Whether people believe in them or not, moral truths
exist (e.g., murder is wrong regardless of individual beliefs).
Application in Law:
Moral realism supports natural law theory, which states that law must reflect inherent
moral truths.
Judges who believe in moral realism may advocate for interpreting the law based on
universal moral principles rather than strict legal positivism.
Criticism of Moral Realism in Law:
Critics argue that morality is subjective and that laws should reflect democratic consensus
rather than supposed universal moral truths.
Legal positivists like H.L.A. Hart oppose moral realism, arguing that the law is a social
construct and should not be confused with morality.
Example Cases:
Nuremberg Trials (1945-46) – War criminals were prosecuted based on moral realism,
as Nazi laws were considered inherently unjust.
Vishaka v. State of Rajasthan (1997) – The Supreme Court recognized workplace
sexual harassment laws based on universal moral principles of dignity and equality.
Conclusion
Judicial morality ensures that judges balance legal principles with ethical
considerations.
Moral and semantic questions challenge the extent of judicial discretion in applying
moral reasoning to legal decisions.
Moral realism asserts that some moral truths are objective, influencing legal
interpretations that align with justice and human rights.
These concepts shape the evolving role of judges in maintaining a legal system that is not only
legally valid but also morally sound.
