What an Unjust Law Is

The tests for identifying an unjust law

These are the workable tests, and an answer that applies them beats one that gestures at injustice.

1. It treats people unequally without a rational basis

The oldest test and the most used. Likes must be treated alike, and where a law separates one group from another it must be able to explain the separation by reference to the purpose of the law.

2. It denies a basic interest that no purpose can justify taking

Life, liberty of the person, freedom of conscience, the ability to earn a living. A law that takes these away is unjust whatever it achieves.

3. It was not made or applied fairly

Retrospective punishment; a rule that nobody could have known in advance; a decision without a hearing; a judge deciding their own case; a punishment fixed with no opportunity to be heard about it.

4. It cannot be justified in public

Lon Fuller's inner morality of law supplies the practical version: laws must be general, published, prospective, intelligible, not contradictory, capable of being obeyed, stable, and actually applied as announced. A rule that fails several of these cannot be defended in the open, and a rule whose real purpose could not be stated aloud is a strong candidate for injustice.

5. The affected group had no part in making it

The democratic test. A rule imposed on people who were excluded from the process that produced it lacks the one answer that is otherwise available, namely that they had a say. This is the test Martin Luther King uses at topic 2.3.2 and it is worth remembering that it comes from him.

6. Its only defence is that it has always been there

Which is the prescriptive argument of chapter 360, and chapter 360's answer applies: antiquity is not a justification.

Two Indian laws that were held unjust

Facts. Mithu v. State of Punjab, (1983) 2 SCC 277. Section 303 of the Indian Penal Code provided that whoever, being under sentence of imprisonment for life, commits murder shall be punished with death. The sentence was mandatory. A court convicting such a person had no discretion whatever, could hear nothing on sentence, and could not consider the circumstances of the offence or of the offender. The appellants argued that the section was unreasonable and arbitrary and that it authorised deprivation of life by an unjust and unfair procedure.

Held. A Constitution Bench struck section 303 down as unconstitutional and void, holding the mandatory death sentence for a murder committed by a life convict violative of articles 14 and 21. There was no rational basis for singling out life convicts for a punishment from which every other convicted murderer was protected by judicial discretion, and a procedure which excludes any consideration of the circumstances of the crime and the criminal is not the fair, just and reasonable procedure article 21 requires.

Why it matters. Test 1 and test 3, applied by a court. And notice what did not save the section: it had been validly enacted, and it had stood since 1860.

Facts. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. Section 377 of the Penal Code punished carnal intercourse against the order of nature with imprisonment, and as applied it criminalised consensual sexual acts between adults of the same sex. The Delhi High Court had read it down in the Naz Foundation case and that decision had been reversed in Suresh Kumar Koushal. The petitioners challenged it on equality, expression, privacy and personal liberty.

Held. A Constitution Bench held section 377 unconstitutional so far as it criminalised consensual acts between adults in private. It found the provision manifestly arbitrary and over-broad, since making a consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness; it held the section violative of article 15; and it held that it offended dignity, privacy and the freedom to express one's identity. The Court held that a classification treated as valid when adopted may cease to be valid as social norms change, and that constitutional morality, not popular morality, governs.

Why it matters. Test 2 and test 5. And again notice the two defences that failed: popular disapproval, and the fact that the provision dated from 1860. Prescription lost in court.

The problem of obedience, which is what MU's 2.3 asks

Identifying an unjust law settles nothing about what to do, and three positions are defensible.

Obey and work to change it. The prima facie duty from chapter 270 is strong; the injustice must be very grave to outweigh it; and a legal system in which each citizen decides which laws to obey is worse for everybody, including the victims of the unjust law.

Disobey openly and accept the penalty. Civil disobedience: the breach is public, non-violent, and accompanied by submission to punishment, which distinguishes it from crime and demonstrates that the disobedient still accepts the system as a whole. This is topic 2.3.2 and 2.3.3.

Disobey and resist. Where the injustice is grave enough and no lawful route exists, the right of resistance is claimed. Locke's dissolution chapter is the classical warrant.

The variable that decides between them is the availability of a remedy. Both Indian sections above were removed by a court, at the instance of people who used the legal system rather than defied it. In a constitutional order with an independent judiciary, the first option is far more powerful than it was in Locke's England or in Gandhi's India, and any answer on this topic should say so.

A worked example

A State passes a law requiring every person applying for a ration card to produce proof of continuous residence for fifteen years.

Test 1, equality. It separates long residents from recent ones. Is the separation rational in relation to the purpose? If the purpose is preventing duplicate cards, a fifteen year rule is far wider than needed, and the separation begins to look arbitrary.

Test 2, basic interests. The card controls access to subsidised food. The rule therefore bears on subsistence, which is a basic interest.

Test 3, fairness. Is there an appeal? Can a person who cannot produce documents prove residence another way?

Test 4, public justification. Could the purpose be stated aloud? If the real purpose is to exclude migrants from a particular region, it could not, which is decisive.

Test 5, participation. The people worst affected are migrants, who in practice have the least political weight in the State that made the rule.

And the practical question. A person refused a card should apply, be refused, obtain the refusal in writing and challenge it. That is the first option above, and on these facts it is very likely to succeed, which is why it is the right advice. Civil disobedience is what remains when that route is closed.

Distinctions that carry marks

What an unjust law is NOT

It is not a law you dislike. Inconvenience, cost and disagreement are not injustice, and treating them as such destroys the concept.

It is not the same as an invalid law. An invalid law binds nobody and needs no theory of disobedience. The problem arises precisely because unjust laws are valid.

It is not always old or foreign. Both examples above were Indian, both were enacted in 1860, and both were struck down within living memory.

Identifying one does not settle what to do. That is a separate question and is the whole of the rest of Module II.

Quick revision

1. Natural law: lex iniusta non est lex. Positivism: existence and merit are separate; better to say "this is law and it is too iniquitous to obey", which keeps the problem visible.
2. Six tests: unequal treatment without a rational basis; denial of a basic interest; unfair making or application; incapable of public justification (Fuller's inner morality of law); the affected group excluded from making it; and defended only by its antiquity.
3. Mithu v. State of Punjab, (1983) 2 SCC 277: section 303 IPC, mandatory death for murder by a life convict, struck down under articles 14 and 21; no rational basis, and a procedure allowing no consideration of the offence or the offender is not fair, just and reasonable.
4. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1: section 377 IPC unconstitutional so far as it criminalised consensual acts between adults; manifestly arbitrary and over-broad; a classification valid when adopted may cease to be valid; constitutional morality, not popular morality.
5. Neither section was saved by having been validly enacted in 1860, which is prescription failing in court.
6. Three responses: obey and work to change; civil disobedience with acceptance of the penalty; resistance. The availability of a remedy is what decides between them.

Test yourself

1. Can a law be unjust and still be law? Set out both answers. Natural law says that a sufficiently unjust rule is not law at all, on the maxim lex iniusta non est lex, so the citizen confronting it faces no law and no question of obedience. Legal positivism says the existence of a law is one thing and its merit another, so a rule validly made is law however wicked, and should be called law and then condemned. The positivist position is more useful here, because saying that a monstrous rule is not law makes the citizen's problem vanish by definition instead of answering it.

2. Give the tests for identifying an unjust law. That it treats people unequally with no rational basis related to its purpose. That it denies a basic interest such as life, personal liberty, conscience or the ability to earn a living. That it was not made or applied fairly, being retrospective, unknowable in advance, or imposed without a hearing. That it cannot be justified in public, failing Fuller's requirements that law be general, published, prospective, intelligible, consistent, capable of being obeyed, stable and applied as announced. That the group it burdens was excluded from making it. And that its only defence is its antiquity.

3. State the facts and holding in Mithu. Section 303 of the Penal Code required the death sentence for any murder committed by a person under sentence of imprisonment for life, and the sentence was mandatory, so no court could hear anything on sentence or consider the circumstances of the offence or the offender. A Constitution Bench struck it down as violative of articles 14 and 21, finding no rational basis for singling out life convicts for a punishment from which every other murderer was protected by judicial discretion, and holding that a procedure excluding all consideration of the crime and the criminal is not the fair, just and reasonable procedure article 21 demands.

4. What did Navtej Singh Johar decide, and what defences did it reject? That section 377 of the Penal Code was unconstitutional so far as it criminalised consensual sexual acts between adults in private, being manifestly arbitrary and over-broad, violative of article 15, and destructive of dignity, privacy and the freedom to express one's identity. It rejected two defences. Popular disapproval was rejected because constitutional morality and not popular morality governs. Antiquity was rejected because a classification treated as valid when adopted may cease to be valid as social norms change, which is the prescriptive argument failing in court.

5. Having identified an unjust law, what should a citizen do? Three courses are defensible: obey while working through lawful means to change it, since the prima facie duty is strong and a system in which each person selects their laws harms everyone including the victims; disobey openly and non-violently while accepting the penalty, which is civil disobedience and marks the disobedient as still accepting the system; or resist, where the injustice is grave and no lawful route exists. The deciding variable is the availability of a remedy, and in a constitutional order with an independent court the first course is far more powerful than it was for Locke or for Gandhi, as both the Indian examples show.