INTRODUCTION
The oldest tussle in the legal landscape has been the tension between the exact wording of the statutes and the spirit of justice. Concluding judgments with an unyielding focus on only one of these risks undermines the sanctity of law. The earliest literary manifestation of this struggle appears in William Shakespeare’s ‘The Merchant of Venice’. The central conflict revolves around Shylock, a Jewish moneylender, who demands a pound of flesh from Antonio, a Christian merchant. Antonio defaulted on the repayment of the three thousand ducats loaned from Shylock. In retaliation, Shylock demands ‘jus strictum’, a Latin phrase for enforcing the letter of the law, regardless of moral consequences. This insistence only ends up undoing Shylock, illustrating Shakespeare’s view of how law should be interpreted. This essay explores how the dispute between Shylock and Antonio would unfold in Indian courtrooms, which have a history of considering the law’s spirit when its text would otherwise deliver an unjust blow.
ANTONIO’S PREDICAMENT
‘A pound of a man’s flesh taken from a man
Is not so estimable, profitable neither,
As flesh of muttons, beefs, or goats. I say,
To buy his favor, I extend this friendship.
If he will take it, so.’ [1]
In the aforementioned reference, Shylock convinces the overconfident Antonio to stand as guarantor for Bassanio by trivialising the worth of a pound of human flesh in comparison to red meat. He brings about Antonio’s agreement by driving home the fact that he himself had nothing to gain from this bond. In the (fictitious) Venetian law, as understood from the plot, this agreement constituted a legally binding contract. However, it would be far from easy for Shylock to enforce the agreement in an Indian courtroom. Due to section 23 of the Indian Contract Act, 1872, there would be no acceptable contract to begin with. The aforementioned section talks about how if the consideration of an agreement implies injury to the person of an individual, the agreement is said to be unlawful.[2] Here, the pound of flesh, as well as the bleeding that would ensue, would not only be injurious to Antonio but also fatal. Section 23 also declares agreements opposed to public policy as void.[3] Although undefined, Indian courts have historically held that ‘public policy’ refers to the welfare of society, public interest, or the state at large. The extraction of human tissue to satisfy a monetary interest seems to go against the very definition of ‘public policy’.
The Indian Contract Act has yet another bind on Shylock. Section 74 states that an aggrieved party cannot enforce an “extravagant” or “unreasonable” penalty.[4] The aggrieved party is only entitled to ‘reasonable’ compensation not exceeding the amount named. As the Supreme Court clarified in Fateh Chand v. Balkishan Das (1964), courts will only award reasonable compensation up to the amount named in the contract.[5] Thus, a pound of flesh, besides being an extravagant penalty, bears no reasonable relationship to the loss of 3000 ducats. An Indian judge would strike down the ‘flesh’ clause as a punitive penalty and likely order Antonio to repay the 3000 ducats with a reasonable rate of interest, rendering the rest of the dramatic trial moot.
The greatest defense Antonio has on his side is Article 21 of the Constitution of India, which guarantees that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law.’[6] In the landmark case of Maneka Gandhi v Union of India, the Supreme Court established that any procedure that deprives a person of their life or personal liberty must meet the standards of ‘just, fair, and reasonable’ and incorporate principles of natural justice. [7] This ‘contract’ (the term is used loosely here) that attempts to cause the death or permanent injury of Antonio, seemingly because of the grudge that Shylock holds, can never constitute a procedure established by law. Irrespective of the fact that Antonio had freely consented to the bond, Indian law holds that Fundamental Rights cannot be waived. One cannot contractually agree to be murdered or mutilated, as the State has a vested interest in the life of every citizen.
SHYLOCK’S TROUBLES
The Indian gavel comes down heavily over Shylock. Section 109 of the Bharatiya Nyaya Sanhita states ‘Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder…’[8] For a conviction under Section 109, the prosecution must prove that Shylock took a step that went beyond mere planning. Shylock, bringing a sharpened knife and a pair of scales to the courtroom, when examined in conjunction with his refusal to accept triple the money owed to him instead of the pound of flesh, demonstrates a fixed resolve to carry out the act. The moment that Shylock approaches Antonio to cut the pound of flesh signifies that he has committed an overt act. The only foil in his path is the interruption from Portia, so this move from him satisfies the criteria for an attempt that went beyond simply planning. An Indian prosecutor would face a fascinating yet challenging path in holding Shylock criminally liable under Section 109 for attempted murder. To secure a conviction, the state would have to prove that Shylock’s actions crossed the line from mere preparation into an actual criminal attempt.
A compelling case could be built by linking his physical readiness, i.e., bringing a sharpened knife and scales to court, along with his repeated refusal to accept triple the financial payout. The prosecution would argue that the moment Shylock approached Antonio to carve the flesh, only to be stopped by Portia’s sudden intervention, he committed the necessary “overt act” driven by a fatal intent. While a defence attorney would argue Shylock was merely seeking civil specific performance, a modern court could easily view this sequence as a fixed, deadly resolve that went far beyond preparation.
Shylock’s primary defence would likely be that his intention was only to collect a debt, not to induce death. However, Section 109 has that loophole covered. The intention not to cause a death and the knowledge that it might cause death aren’t treated as mutually exclusive. Shylock intended to only follow the provisions of his bond, i.e., extract a pound of flesh from Antonio from the nearest his heart. However, it is unlikely that he did not have the knowledge that the act is so dangerous that death is almost a certain result. In the eyes of BNS, if Shylock had the knowledge that death is imminent, then the law would legally presume that he had the intention to cause death.
However, the gavel wouldn’t humiliate Shylock in ways that the Venetian Duke allowed. The conclusion of the play observes that not only is his bond denied, but he is also forced to convert from his religion and forfeit his property. Article 15[9] prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Article 25[10] guarantees the freedom to practice and propagate one’s religion. The forced conversion of Shylock would be a gross violation of the fundamental rights afforded to him by the Constitution. Furthermore, the forfeiture of his property to the state and to Antonio would violate Article 300A[11], which mandates that no person shall be deprived of their property save by authority of law. A law that strips a person of their assets and faith simply because they lost their suit would be struck down as unconstitutional and arbitrary under Article 14[12].
CONCLUSION
Ultimately, the trial in The Merchant of Venice serves as a classic study in the tension between the letter of the law and the spirit of justice. However, when viewed through the prism of Indian jurisprudence, this tension is largely resolved by a robust constitutional and statutory framework that prioritises human dignity over the sanctity of a predatory contract.
In an Indian courtroom, Shylock’s pursuit would be defeated, not by a clever linguistic loophole that Portia exploited, but by the fundamental principle that the law cannot be used as an instrument of barbarism.
Author(s) Name: Suhani Jamnanni & Pallavi Priya (Amity University, Lucknow)
References:
[1] William Shakespeare, Merchant of Venice (Maple Press 2013)
[2] Indian Contract Act 1872, s 23
[3] Ibid
[4] Ibid s 74
[5] Fateh Chand v Balkishan Das AIR 1963 SC 1405
[6] Constitution of India 1950, art 21
[7] Maneka Gandhi v Union of India AIR 1978 SC 597
[8] Bharatiya Nyaya Sanhita 2023, s 109(1)
[9] Constitution of India 1950, art 15
[10] Ibid art 25
[11] Ibid art 300A
[12] Ibid art 14