Law and Psychology, although seemingly two different fields with no correlation as to the approach and kind of study which they focus upon, still have some converging areas where these two fields not only complement but at the same time also becomes an indispensable part of each other.
While on one hand psychological study discusses: why the society and people living in the society behaves in a particular manner, the legal field on the other hand deals with the rules and regulations to make the society behave in an orderly manner and what consequences could follow in contrary situations.
Psychology as a subject/ field of study is new and emerging and started in 19th Century however the history of psychology can be traced back to ancient Egyptian[1] and Greek civilisations. Law on the other hand started developing in 1754 BCE[2] however, both Law and Psychology finds some kind of mention in our Religious Ancient texts and Mythology.
The continuous research and development in both these fields and the emerging new concepts has brought in front the need to establish a legal system which is backed by the psychological base and vice-versa. Below is a brief analysis of some areas where both Law and Psychology play a crucial role in balancing the scenario.
A glimpse of Psychology in the Constitution of India
The Constitution of India can be considered as a legendary document as it is one of the finest and elaborated Constitution ever made. The Constitution makers have taken references from various other Constitutions and put the best possible document after thorough deliberations and discussions. This Constitution is the summation of all the knowledge fields that exists such as Science, Arts, Environment, History etc. Psychology played a very important role while the Constitution was taking its shape. This was the time when the British Rule ended but the mindset of the people was unstable as partition of Indo-Pak and the Consolidation of the rest of the India took place, economic and financial instability was prevalent which was complemented by illiteracy, food shortage, natural calamities etc.
At this time the makers have to first ensure that the people who choose India should feel safe in all senses inside India.
This sense can be seen in the Constitutional provisions. Few examples that show the contribution of Psychology in the Constitution are as follows:
- The Preamble– it starts with ‘WE THE PEOPLE OF INDIA’- the starting of the Constitution itself projects a sense of belongingness and social connect among the people of India.
- The Part II of the Constitution that is the Citizenship– the provisions mentioned here provides a sense of Identity. This can broadly come under the Social Needs of the Maslow’s Need Hierarchy Theory which tells that the sense of identity and society has a strong role to play in the life of an individual and to keep him motivated.
- Part III- The Fundamental Rights– An in-depth analysis of all the Fundamental rights projects that the base has been psychological satisfaction of the people. Be it the Right to Equality, Right to Life or Right to Constitutional Remedies the framers of the Constitution ensured the safety of the people and also provided a legal mechanism in the form of strong Judicial system to keep an eye on the appropriate implementation of the provisions.
The above few examples are a part of the bigger picture, and time and again the law makers are still proactive in making certain amendments to further achieve the objective.
Issues where Psychology can guide the Legal Boat-
- Witness Protection and Victim’s Protection– psychology plays a crucial role when it comes to witness protection and the protection of victims of heinous offences. The witness protection scheme of 2018 is an example were providing the witnesses, protection from the influence of the culprits, has not only avoided miscarriage of justice but also helped in the free and fair trial of the case. Witnesses and Victims of the crime feels psychologically secure when they find that their identities and personal safety are taken care of by the state and they can assist in the administration of justice without getting influenced by the other factors.
Similarly, in the POCSO Act the section 33(7) provides for non-disclosure of identity at any time during the investigation or the trial except for some specific reasons to be made in writing before the special court. The purpose of these provisions is multi-fold i.e. to provide safety and security from the offenders as well as curbing social stigma.
- Juvenile Justice- the next area in law where the psychological setup has contributed is the Juvenile Justice. It has always been observed in the legal parlance that the juvenile must always be send to a juvenile home instead of a prison. The objective behind this is that a child/teenager should not be treated as a criminal and must always be given a chance to reform and become and asset for the society.
As per psychological concept of Tabula Rasa a child is born with a blank mind and this mind can benourished either in a positive or negative way hence making the personality of the child. The Juvenile reformative centres to some extent aim at correcting the child’s behaviour and his/her personality, where the child can become an asset for the society by changing the behavioural aspect of this child.
- Human Rights and Rights of the Minority Sections- we are seeing a turbulent world that is facing various challenges such as wars, internal disturbances, environmental changes etc., creating a situation where the worst affected are the people living in certain areas and the minority sections compromise on their rights. The basis of Human rights can be traced with the psychological concept of Empathy[3] and Sympathy[4], where the former means the ability to put oneself in another’s shoe, while the latter describes the person’s perception about someone else’s situation or the ability to share in another person’s feelings and concerns. The international and national laws that deals with the issues of Human Rights Protection (UDHR), Refugee Laws (CAA in India), Rights of the Minorities such as LGBTQ, The SC/ST prevention of Atrocities etc, they all find their base in the development of the positive attitude of the society towards the situation which these people are facing.
The list is inclusive and not exhaustive. These issues can be dealt best by focusing on the mental state of the affected and then making the laws accordingly.
New Arenas where psychological safety shall be backed by the Legal Provisions.
- The Cyber security (Artificial Intelligence and Internet of things)– we are aware that the world has become highly digitized. As we enter in the Industrial Revolution 4.0, the internet penetrates in almost every aspect of our life starting from social connectivity to business, financial and health segment. People have become open to the Cyber world as it has wiped out the boundaries that have been in existence few years ago. But this cyber world and internet has brought some new challenges with it such as cyber bullying, hacking, trojan attacks, financial frauds, deep fakes etc. This has created a sense of psychological insecurity in the minds of the people. Data shows that in American continent (South, Central and the Caribbean countries) the adolescents are the worst victims of the cyber bullying incidents, and also the suicidal tendency due to this affect is high. Taking example of India, the NCRB data shows that the cases of cyber-crimes against children have seen a 32% surge in recent times[5]. The mental health issues that usually arises are of Anxiety, Depression, Attention Deficit Hyperactivity Disorder (ADHD), Psychosis etc[6].
Now this situation directly gives rise to the psychological insecurity to the children and their guardians as well leading to a more and strict conservative attitude towards internet. This aspect can be controlled by strict legal framework addressing these issues of cyber security. Provisions of fact check, Online Complaint mechanism, obligations of the intermediaries for various services, laws related to data localisation will provide safety to the internet users and will change their attitude towards the Internet.
- Regulation of the OTT platforms- Over the Top (OTT) content has picked up a fast pace in the present world. The Contents shown in these platforms are appealing especially to the youth. These platforms cover almost every genre of the entertainment starting from Education, Comedy, Romance to Thriller and Crime etc. It should be noted here that the OTT platforms are not highly regulated due to which they can show the contents uncensored. This exposes the audience to high level of obscenity, vulgarity, strong language, violence etc., which ultimately have a strong adverse impact on the psychology of the person watching it leading to behavioural and attitudinal changes. Youth after watching these OTT serials are exposed to strong emotional and behavioural fluctuations.
A recent example of this negative impact can be seen in the Delhi Shraddha Walker murder case where the Accused was inspired by a web series to commit a heinous offence and brutally murdered the girl[7].
While regulating these OTT platforms the prime focus should be on the psychological aspect of the consumers. Till date there is no separate law that deals exclusively with OTT regulation, it is regulated to some extent by the Information Technology Act of 2008 and The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 under the head of Online Curated Content. The need of the hour is to regulate these platforms, make strict censorship, making payments compulsory for watching adult content, flagging the content etc.
- Prison Reforms and the status of the Undertrials–
In India the status of prisons is a matter of great concern for the judicial system. The prisoners in India face various challenges while in the prison. These challenges consist of poor infrastructure, health and hygiene inside the cells, overcrowding, negligible social interaction, ill treatment from the prison authorities, lack of privacy, lack of productive activity and the list goes on.
Needless to say, that these situations create a negative impact on the mental health of the prisoners. The NCRB data[8] shows that there has been a surge in the mentally ill inmates. In 2021 the mentally ill prisoners were around 9180. The Prisoners suffer from Depression, Post Traumatic Stress Disorder (PTSD), Substance Abuse Disorder (use of drugs, alcohol etc.).
The situation of undertrials is more serious, as these undertrials are living with the convicts and they can get negatively affected by their behaviours. If an undertrial, after serving a jail term is acquitted then it may affect the mental health and the undertrial may eventually become a criminal due to behavioural and attitudinal change towards the law enforcement agencies and the government.
The prison reforms must be centred around the prisoners instead of the enforcement agencies.
For instance –
1. To maintain good mental health mandatory appointment of psychologists should be made a statutory provision along with behavioural training of the prison authorities.
2. The concept of parole, furlough, probation etc. should get a wider scope and the authorities granting these should be from the prison centres so that the actual situation of the prisoner can be analysed.
3. Law must provide for the compulsory upgradation of prison infrastructure at regular intervals so that the confinements can remain in good conditions.
4. Concept of open prisons which is based on the reformative theory should be given due consideration as it will help in resocializing and bring productivity in life and must be adopted by all the states and union territories. In India there are total 150[9] open jails the highest being in states of Rajasthan and Maharashtra.
5. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which is still more of an advisory[10] should become mandatory.
- Emerging Environmental Concerns and the role of psychology in making new laws- The Changing environment and its repercussions has given the world a Food for Thought i.e. What Harm can Environment do to Human Health. The discussion usually focuses on the Overt impact that is easily visible such as Respiratory Diseases, Allergic reactions etc. But there is a need to discuss on what is Covert (invisible) i.e. the psychological impact that the environment has on the human beings. Taking an example: –
Studies[11] suggest that the exposure to air pollution may lead to anxiety, depression, and even neurocognitive disorders such as dementia in individuals. The harmful Particulate Matters (PMs) suspended in Air can adversely affect the growth of the children and adolescents.
Similarly, exposure to Lead (heavy metal) from polluted water sources can cause personality disorders such as lower conscientiousness, mood disorders, and higher neuroticism in adulthood (all of which contribute to mental illness)[12].
Law makers should factor-in the mental aspects along with physical aspects and then should set provisions.
The strict adherence and legal obligations to the concept of Environmental Impact Assessment (EIA), Polluter Pays Principle and heavy Penalties along with Community Sensitization programs, Boost to Electronic Vehicles etc. can change the attitude of the people in the society towards the environment and can reduce the environmental problems to a great extent.
- Psycho-Legal Issues in the International Relations- The present world order is highly turbulent. To name a few, the world has seen incidents of global pandemic, wars between nations (Russia-Ukraine & Israel-Hamas), Humanitarian crisis in African continent, The Red Sea trade crisis etc. These situations and the geo-political tensions arising in the pockets of the world have left the people in a vulnerable situation. The people living in these areas are forced to migrate from one place to another leading to the refugee problem, they suffer from food deficiency and malnutrition, along with substantial rise in the unemployment rate. All these factors contribute in economic, social, political crisis among the nations and create a psychological insecurity among the natives. The most affected are the minorities and the vulnerable groups.
The more unstable the region, the more severe is the mental health issue. Depression, Post Traumatic Stress Disorder (PTSD), Substance Abuse Disorder, Learned Helplessness, Stockholm Syndrome are some of the mental health/psychological problems that exists in these areas.
To overcome these issues, it is extremely important that the international platforms and institutions such as United Nations, European Union, ASEAN, BRICS, etc. use their influence over the respective regions and work towards maintaining peace and tranquillity. It is usually observed that the International Treaties and Laws are present mostly on papers and when it comes to the implementation at the global level, they fail to conform with the situations either due to lack of funds, or non-ratification by the countries.
The nations are more concerned to the individual national development and do not focus on the comprehensive development. The need of the hour is to make the Treaties and Laws, related to Peace, Trade, Environment etc., a legally binding agreement where once the Nation ratifies it, they become bound by the Treaty and any failure to comply shall attract imposition of penalty on the nation. The role of ICJ, WHO, UNSC becomes more crucial in this regard. These steps will ensure the safety and security of the people living in hotspot areas, as they will be able to report the violation and seek the Protection of their Rights.
Conclusion- As discussed, every legal challenge has a psychological aspect and vice-versa, there persists a strong need to address them. Small steps in this direction can make a huge difference: –
Role of Non-Governmental Organisations, Think Tanks, Pressure Groups– in the legal framework is crucial. They can use their research capabilities and last mile reach to observe the practical difficulty people are facing in the region. These institutions can then aid and advice the governments to frame laws that can give genuine relief to the affected people.
Government Agencies– should establish specific wing that cater to the Mental Health/Psychological well-being of the people. These establishments will form schemes and policies to target the vulnerable sections of the society. The field experts can advise various situations that are/can create psycho-social disturbance and what needs to be done to curb them.
At the Policy Level– Education policies/Laws must take into account the Mental Development of the Children and the prime focus should be on effective and stress-free learning of the child instead of overburdening the children with knowledge. Children at the early stage of schooling have the high capacity of observational learning and positive attitudinal and behavioural changes in the personality can be achieved in this period of time.
Guidance can be taken from the countries like Finland, USA, Japan., U.K., where the education system is based on the wholistic development of the child and not just the academic developments. Talking of India, The New Education Policy that we have adopted in 2020 has made few fundamental changes in the Education system, however more emphasis is required in the Mental Health of the Students.
Amendments in the Existing Laws– There is a need to either replace or amend laws that have become obsolete or inconsistent with the present situation. Constitution must expressly include Mental health and psychological well-being as Fundamental Right. Unique concepts such as Gross National Happiness of Bhutan[13] can be a guiding philosophy to set goals related to welfare of the society.
Ultimately it can be said that the Society will become stronger if we can have a good mixture of Law and Psychology. The co-relation between these two have evolved over a period of time and the developments across the world needs further advancement in Psycho-Legal aspect of the society. The Indian philosophy of Vasudhaiva Kutumbakam (The World Is One Family) exists on this co-relation and should become a torch-bearer for the World in achieving its developmental goals, along with the active participation of various stakeholders to make the world a better place.
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[2]Code of Hammurabi, available at: https://courses.lumenlearning.com/suny-hccc-worldcivilization/chapter/hammurabis-code/#:~:text=The%20Code%20of%20Hammurabi%20is,men%2C%20and%20property%20owners)., (last visited on 17 April 2024)
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[4]Meaning of Sympathy, available at:https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100547593 (last visited on 17/04/2024)
[5]NCRB Data on Child Cyber Crime, available at: https://timesofindia.indiatimes.com/india/child-cyber-crime-surges-32-reveals-ncrb-data-underlining-vulnerability-to-online-risks/articleshow/107168056.cms, (last visited on 18 April 2024)
[6] Mental Health issues of Adolescents, available at:, https://www.who.int/news-room/fact-sheets/detail/adolescent-mental-health/?gad_source=1&gclid=CjwKCAjw_e2wBhAEEiwAyFFFo-ldp6jqmzGz-JU-wHXSv1RhKJHjUfQqaVTUWa3y4Is_7uPweac9RxoCWAUQAvD_BwE , (last visited on 17 April 2024)
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[8] NCRB Data on Mentally Ill Prisoners, available at:https://timesofindia.indiatimes.com/india/22-rise-in-number-of-mentally-ill-jail-inmates-ncrb/articleshow/94124324.cms, (last visited on 17 April 2024)
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[10] Model Prison Manual, available at: https://sansad.in/getFile/annex/253/AU3257.pdf?source=pqars, (last visited on 18 April 2024)
[11] Effects of Air Pollution on Mental Health, available at: https://www.ox.ac.uk/news/2023-07-06-poor-air-quality-found-affect-mental-health-many-ways#:~:text=They%20found%20evidence%20that%20exposure,neurocognitive%20disorders%2C%20such%20as%20dementia , (last visited on 18 April 2024)
[12] Effects of Water Pollution on Mental Health, available at:https://www.ehn.org/water-pollution-and-mental-health-2655532533.html , (last visited on 18 April 2024)
[13] Concept of Gross National Happiness, available at:https://blogs.adb.org/blog/your-questions-answered-what-bhutan-s-gross-national-happiness-index#:~:text=Bhutan%20measures%20happiness%20by%20periodically,domain%2C%20there%20are%20several%20indicators., (last visited on 19 April 2024 )
Author: Anmol Varma
Juris Centre 