Open Access Research Article
Ethics and Jurisprudence With special reference to The Transgender Persons (Protection of Rights) Act, 2019 (By-Aayat Fatma)
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Article Details
Ethics and
Jurisprudence With
special reference to The Transgender Persons (Protection of Rights) Act, 2019
Authored By-Aayat Fatma
B.A., L.L.B (H) 3rd Year student
B.A., L.L.B (H) 3rd Year student
Amity Law School, Noida.
Table Of
Contents
Content
·
Abstract
·
What are Ethics?
·
What is Jurisprudence?
·
Relation of Ethics and Jurisprudence
·
The Transgender Person (Protection of Rights)
Act 2019
·
Is the Act Ethical?
·
Conclusion
and suggestions
·
Bibliography
Abstract
Ethics and jurisprudence have either
always been linked to each other or have been totally devoid of each other, the
years-old debate of whether ethics affect jurisprudence or should jurisprudence
be affected by ethics has been tried to be discussed in this paper. Following
this discussion, the highly controversial, The Transgender Persons Act 2019 has
been referred to see if the ethics are linked to jurisprudence and if so, if
the said act is ethical or not.
This paper is inclusive of all the
terms used and holds the research to find the answers to whether the public
resistance to the Act is justified or not. However, before reaching the
conclusion a detailed study of ethics and jurisprudence has been done in order
to clear out the terms used. A link between ethics and jurisprudence has also
been made in this paper. Following the link, we have analysed the act and its
background in order to find all the facts.
The key role of the 2014 judgement and
its following steps have been discussed which provide a great deal of insight
into this topic of ethics and law.
Keywords – ethics, jurisprudence,
Transgender, The Transgender Persons Act 2019.
What Are Ethics?
When asked what is ethics many people
comment ethics is related to their feeling of righteousness, the socially
accepted norms or the following of the law. However, ethics are not these.
Ethics cannot be determined by the
feeling of wrong or right as the wrong for one may be right for one, a robber
robs for his own personal reasons while robbed is left feeling wronged.
Similarly, socially accepted norms or
living ways can also not be labelled as ethics, and an example of this is
during the Nazi period, when the whole society’s thinking was corrupted or the
discrimination against Black during the slavery period.
Lastly, ethics and law always do not
go hand in hand. While all ethics can be asked to be turned into laws, all laws
cannot be called ethical. An example is the Indian exploitative laws in
colonial India, while these laws were deemed fit by the colonial rule at that
time, they were against the ethics of equality.
So ethics are two things rather these
definitions First, ethics
refers to well-founded standards of right and wrong that prescribe what humans
ought to do, usually in terms of rights, obligations, benefits to society,
fairness, or specific virtues.[1]
These are those reasonable obligations which refrain the individuals from those
acts which shall harm the society at large and not just individuals’
consciousness. Second, ethics is the study of these developing ethical
standards. As I mentioned above, it is easy for ethics to be deviated by
feelings, societal norms or law, however ethics men the study of how and why
these deviations happened. It is the part of individuals’ ethics to determine
their inner ethical values and how they differ from the actual standard which
is to be followed.
Now
that we have talked about ethics, it is necessary to talk about morals and
their difference. Ethics and morality are closely related, almost synonymous,
what may have been referred to as moral code or moral principles earlier, may
now be referred to using the terms ‘ethical code’ or ‘ethical principles. Now, this replacement of words can be looked
upon as the result of the extension of the meaning of the term ethics.
Originally ethics was called to be the study of morals, it was in a sense the
study of moral philosophy. With changing times we have seen that ethics are
what people might call the “imposed morals.” Morals are an individuals’ sense
of right or wrong. Over time, as people get grouped more and more, the ethical
code of a certain group can be called the morality of every individual of that
group.
Three parties are necessary to the
existence of a legal right,-the state, the one in whom the right is conferred
by the state inheres, and the one subject to the correlative obligation which
the state imposes. But as regards a moral right, two parties alone are
concerned; the third party, the state, is no longer present, and therefore the
moral right cannot be enforced.[2]
Ethics
is an applied science. Although ethics has continually been viewed as a
branch of philosophy, its broad sensible nature links it
with several alternative areas of study, together
with social science, biology, law, economics, history, politics,
sociology, and theology. Yet, ethics remains distinct from such
disciplines as it's not a matter of factual data within
the approach that the sciences and alternative branches of
inquiry are all about. Rather,
it has to do with determining the nature of normative theories and applying
these sets of principles to
practical
moral problems.[3]
It is ethics which provide the
rules of best human conduct and is divided into two branches the ideal moral
code and the positive moral code. The ideal moral code conducted, is related to
natural law, the law which is not been legislated or manmade but is enshrined
in the hearts of people in society which is unchanged and remains true in the
future. The positive moral code deals with the rule of actual conduct
as displayed in any society at a certain time. Such rules of positive morality,
being based on public opinion of a specific society, necessarily change with
the men, places in the society[4].
Now before applying this branch of
philosophy to the study of law which is jurisprudence, we shall see delve into
what jurisprudence in its essence is.
What Is
Jurisprudence?
There is no actual definition of the
word Jurisprudence, if there is anything concrete about jurisprudence, it’s the
meaning of the word which comes from the roman word jurisprudential which
means ‘skill in law’ or ‘knowledge of the law’. Now if we look at this meaning
the scope of jurisprudence is limited to a shameful extent. Jurisprudence in a
broader sense everything about law, its history, its reasons, its formation,
and its acceptability all in all we can say that jurisprudence is the study of
the law of states descending from the natural law. Julius Stone describes
jurisprudence as “the lawyers’ extraversion. It is the lawyers’ examination of
the precepts, ideals and techniques of laws in the light derived from the
present knowledge in disciplines other than the law.”[5]
If we go by the different definitions
by the eminent jurists we can see the variations in the meaning of the term
jurisprudence are highly influenced by the era of the author and also the
country of the authors. The Roman civilization, which is popularly known as the
bedrock of all human civilizations in the world, started to question the
meaning and nature of law. Ulpian defined law as the “knowledge of things
divine and human”. According to him, the law is the science of right and wrong.
Several jurists in Europe began to deliberate upon the meaning of the law.
If we look at Austin’s approach to
jurisprudence, we see a political invisible hand, according to Austin jurisprudence
has nothing to do with the goodness or badness of law[6].
According to Austin, a law is positive law and should be followed by all
irrespective of its moral or ethical background of it. This can be linked to
the Queen’s rule at that time, the word of the monarch shall be the word of
law. Holland’s definition of jurisprudence further strengthens this notion.
Even though he criticised Austin’s attempt at diving jurisprudence into general
jurisprudence and particular jurisprudence, he did define jurisprudence as the
‘ formal science of positive law’, wherein positive law has been defined by him
as the general rule of eternal human action enforced by a sovereign political
authority.[7]
What we consider good in any society
at a certain time may be bad at another time in the same society or nation. In
any society, not all people need to be ideal therefore some laws are required
for the enforcement of certain rules of human conduct, and this is what ethics
bring to jurisprudence.
Relation
Between Ethics And Jurisprudence
Now that we have a clear idea of
jurisprudence and ethics we can delve into the relationship between the two.
One thing that should be kept in
mind, ethics is not a branch of jurisprudence, nor is jurisprudence the branch
of ethics. Both sciences are different ad have their own dignities to maintain.
And, therefore, ethics influences jurisprudence more by bringing to its life
and light from without, than by holding an artificial and false position within
the jural sphere. [8]
We have seen that ethics and morals
are closely related, and the relation of law with morals is more evident than
that of ethics and jurisprudence. The relationship between morality and law can
be considered as a vein diagram. It might not have any point of contact, but
they might overlap each other or may be completed by dissolved in each other.
We have instances where the law and morals go hand in hand, however, there are
instances when an act can be legally right but has no moral significance. Harsh
reality also shows that sometimes law and morals conflict with each other. A
very common example of these instances can be the religious suppression of laws
in various countries.
However, we have also had instances
when an act can be both legally and morally right. “Thou shalt do no
murder" is the law of nature, and the law imposed by the individual
conscience.
The way morals have shaped the laws
cannot be overlooked. An act of law
going against the morals of the group shall face rebellion. Only when an act is
morally right it can be called ethics. As ethics are the enforced morals by the
state, now as I read the journals I have come to the point where I can say that
ethics have shaped the past and present of law thus Ethics are related to
jurisprudence.
Indian
Transgender Persons (Protection Of Rights) Act 2019
In order to establish the
relationship between the topics of ethics and jurisprudence and the said act,
we shall first have a look at the said act.
Indian act, The Transgender Persons
(Protection of Rights) 2019[9]
which came to effect on 10 January 2020 for the welfare and protection of
rights for transgender persons. The said act has a history worth knowing before
moving ahead.
In the historic case of National Legal Services Authority v.
Union of India [10],
the Supreme Court of India declared that the transgender was indeed the third
gender and gave them room under the umbrella of fundamental rights which were
earlier reserved for only two genders. The right of self-identification, even
in absence of sex reassignment surgery, was also endowed to transgender
persons. It was also during this judgement that the Supreme Court laid
down a series of measures for securing transgender people's rights by mandating
the prohibition of discrimination, recommending the creation of welfare
policies, and reservations for
transgender persons in educational establishments and jobs.
In the year 2014, a Private member’s
bill namely the Rights of
Transgender Persons Bill, 2014[11] was
introduced within the Indian Parliament that was afterwards passed by the Upper
House of the Parliament, a rare accomplishment in itself, since historically,
not several Private member’s bills have progressed so far into the law
enactment process. However, while the Private member’s bill was still pending,
in 2016, the Indian Government had written and tabled the version of the bill
within the Parliament, which was assigned a committee of the Parliament for
any suggestions, the committee was
assigned when the transgender community had felt left out and with this
committee’s suggestion s in 2018, a brand new version of the bill was
introduced with 27 amendments. However with the dissolution of the Parliament
in 2018 and formation of recent central government in 2019, the bill was
reintroduced within the Parliament in 2019 and eventually enacted into law.
This 2019 was enacted into act[12]
without going through a committee before as the vote was against of this
criticism by the committee.
The issue arises where the judgement
passed by the SC in 2014[13]
is not reflected in the act passed in 2019. This has raised an issue of
concern. Several points in act of 2019 are questioned.
Firstmost is the inclusion of the
term ‘intersex variation[14]’
in the definition of the term ‘transgender persons’[15]
in the 2019 act. The 2014 judgement was given for transgender people and not
intersex people who are actually not exactly transgender persons. While a transgender person is one who
has a different gender identity than that provided at the time of birth, a
‘person with intersex variations’ is one whose gender is based on biological
characteristics. Though the difference is subtly brought through the two
separate definitions, the definition of ‘transgender persons’ has been made too
broad to include a ‘person with intersex variations’.
Secondly,
The Transgender Persons Act probably remains inadequate as it fails to provide
for a skeleton on various other related rights, like marriage rights, adoption
rights, maternity rights etc. – which were actually introduced in the 2014
bill.
Thirdly,
the 2014 judgement[16]
had recommended the reserved quota for transgender persons in fields of
education and jobs, however, the 2019 Act, had no such provisions.
The
most important discrepancy is the right to self-identification, while the 2014
judgement gave the right for self-identification without sex reassignment
surgery, the 2019 Act makes it compulsory to get the certificate for District
Magistrate in order to claim their gender. [17]
Apart
from these differences the penalties for offences under the Transgender Persons
Act extend only up to two years of imprisonment with fine[18],
which may seem inadequate for more heinous violations like sexual abuse, rape,
criminal assault or sexual harassment.
Is The Act Ethical?
Now
that we have seen the detailed account of these two rights, the question is if
its ethical for the government to form the Act so different from the supreme
court’s judgement or the Bill, both of which were made after in-depth
recommendations from the committee which is more informed about the persons in
question i.e. transgender.
The
judgements of the Supreme Court of India are to be followed through as they are
prescribed codes of conduct a citizen should follow. While these judgements are
not strictly followed like fundamental duties, the judiciary of India has been
given enough power to treat its judgements as the ideal advice for the
citizens. Now, this code of conduct since imposed by an external force rather
than the internal consciousness of the citizen therefore can be rightly called
ethics. This code of conduct which should have ensured the right and equal
representation of the third gender in the country forms the part of ethics.
From
the above analysis of the 2019 Act, it can be said that the act is in violation
of the judgement given by the Supreme Court. Hence this law is in violation of
ethics deemed fit for the country.
It has
been from time to time in history, that a law formed against ethics has always
faced criticism, the same happened with this particular Act. Had the law been
indifferent to ethics, it won’t have faced rebellion but here the law goes
against ethics. The nationwide protests against the act by the activists are
nothing but the affirmation that such an unethical law can bring none of the
achievements it promises.
Conclusion And Suggestions
After
intensive research on the said act and the relation between ethics and
jurisprudence, the conclusion, I have reached is, that The Transgender Persons
Act 2019 is indeed unethical.
This
study was done by seeing various definitions of the terms involved in this
question. The meaning of ethics was traced, the study of jurisprudence was
traced and a connection between these two was established. A detailed analysis
of the Act and its background laid down the facts of the discrepancy. After
these facts, only the conclusion has been reached which shows that the Act is
against ethics and the resistance faced by this act is rightly placed. The only
possible suggestion for this act would be for the Supreme Court to assign a
committee composed of activists and representatives of the community of
transgender to review the Act and suggest possible amendments. Some of the
possible amendments can be to comply properly with the 2014 judgement, along
with this, provisions to make the Act transgender-inclusive should be made too.
The Act should be passed through the hands of the community in question which
is transgender people, only then it can claim its proclamation of it being for
the welfare of the transgender people, can be accepted.
Bibliography
Primary
Sources
·
Acts/ Rules :
Ø The Transgender Persons (Protection
of Rights), No 40, Acts of Parliament, 2019 (India).
·
Books :
Ø MERKEL, JURISTISCHE ENCYCLOPAEDIA 34.
Ø JULIUS
STONE, LEGAL SYSTEM AND LAWYERS’ REASONING’S 16, (Stanford University Press,
1964).
Ø DR
VD MAHAJAN, JURISPRUDENCE AND LEGAL THEORY 2, (Eastern Book Company, 1987).
Ø HOLLAND, JURISPRUDENCE 37
Secondary
Sources
·
Journals:
Ø Manuel Velasquez,
Claire Andre, Thomas Shanks, S.J., and Michael J. Meyer, What is ethics?
1, ISSUES IN ETHICS, II E , 1987.
Ø John Grier Hibben, The Relation of
Ethics to Jurisprudence, Vol 4 , INTERNATIONAL JOURNAL OF ETHICS, pp. 133,
(1894)
·
Articles:
Ø Singer,
Peter. "Ethics". Encyclopedia Britannica, 2 Feb. 2022,
https://www.britannica.com/topic/ethics-philosophy. Accessed March 28, 2022.
Ø STUDY
LECTURE NOTES, http://studylecturenotes.com/what-is-ethics-relationship-between-jurisprudence-and-ethics.
Accessed March 26, 2022.
Article Information
Ethics and Jurisprudence With special reference to The Transgender Persons (Protection of Rights) Act, 2019 (By-Aayat Fatma)
Authors: Aayat Fatma
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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