Introduction
Differentiating a human from mere animal existence gives them the benefit of the freedom to do or omit from doing an act, but when a legal duty is imposed on the individual by the State, the individual loose his freedom of choice, automatically consenting with the rules laid down. Evidently, rules and regulations merely facilitate adherence with the acceptable code of conduct and standards followed by society.
Therefore, human conduct exists by virtue of multiple factors combined to effect a code of mannerisms. Each act of an individual encompasses a form of choice made from a cast of varied types of conducts that could have been chosen. This choice made innately sheds light on the conscious will of the individual on account of the individual’s mental and physical capabilities motivated by their ethics.
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Broadly Defining Law
The vast, all embracing definition of law includes in it all forms of rules, principles, standards or norms which humans have formulated as part and parcel of their obligatory depictions in their relationships with other humans. Therefore, a large part of defining law attracts major features of the definition of morality.
Fazal Ali, J. demarcated the purview of law to contain any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having the force of law in the whole or in any part of the territory of the nation. The expression “procedure established by law” in Article. 21 means a law which is right, just and fair and not arbitrary, fanciful or oppressive. Therefore, valid Law shall not be repugnant to the fundamental rights guaranteed under the basic structure of the Constitution, thereby having some firmness, emanating from the legislative competence of the Legislature enacting it but must also not be repugnant to any of the fundamental rights enumerated in Part III.
Such ‘Law’ though inclusive of customs or usage having the force of law, is State-made law and includes constitutional, substantive and procedural law that bears substantial shades of the meaning of natural justice, clothed with the principles of natural justice that underlies positive systems of law. However, there has been an acceptance of law as an instrument of social change, evolving by a gradual and continuous process.
The glued concept of law and order, a wedged expression includes public order, public peace, public tranquillity and orderliness within a State, either of which if disturbed, would lead to a complete breakdown of the peace in society. Therefore, non-existence of public order affects the general public life.
Defining Morals
It would seem clear that human conduct doesn't just happen. Each human act involves some sort of choice among alternative course of conduct found or believed within the capabilities of the individual actor, or at least between doing or refraining from doing the particular act. Whether made consciously or subconsciously, this choice reflects the will, or the reason, or both the reason and the will of the individual actor. This aggregate of techniques, patterns, and standard of conduct to which men refer choosing courses of action may properly be called morals.
Morals are seen to be the exact opposite of anything that is obscene, indecent, offensive to modesty, lewd, filthy or repulsive. Hence indecency refers to the non-conformance with accepted standards of morality. There is no such restrictive and uniform standard, however courts tend to adopt tests use as the Hicklin’s test, to decide what is moral and what is not based on such moral persuasiveness.
As per the Hicklin’s test, the effect of a publication, on the vulnerable sections of society that could be influenced, particularly the age groups having access to such publication, is studied and kept as a determining factor. However there has been a transformation from this test to the “likely-reader test”. The most recent trend is the that of “aversion” wherein an obscene depiction is made not to instigate lust or arouse sexual desire, instead to sow the horror and depict the human story.
In the Bandit Queen case, the frontal nudity of Phoolan Devi, was featured to arouse sympathy towards the victim of such a gruesome rape, who was stripped of every shred of dignity. Another such illustration was that of the film Schindler’s list where men and women in Nazi concentration camps were shown, their naked bodies being lead to a horrific death. Such depiction was made to show and condemn such social evil.
It is pertinent to note that morals maybe secular or unsecular. The choice to adopt a set of morals is placed on an individual, who can do so out of their own free will. This is seen as a result of the fast-changing standards of contemporary society.
Defining Morality
In Krishena Kumar v. Union of India, the Supreme Court dived into the aspect of morality stating, “Is the art of directing the actions of men in such a way as to produce the greatest possible sum of good. All actions, whether public or private, fall under the jurisdiction of morals. It is a guide which leads the individual, as it were, by the hand through all the details of his life, all his relations with his fellows. Morality commands each individual to do all that is advantageous to the community, his own personal advantage included. But there are many acts useful to the community which legislation ought not to command. There are also many injurious actions which it ought not to forbid, although morality does so. In a word legislation has the same centre with morals, but it has not the same circumference”.
The purview defining morality includes within it the entire body of law. Morality would “include all manners of rules, standards, principles or norms by which men regulate, guide and control their relationships with themselves and with others.”
The concept of positive morality combines etiquette pooled in by a large public opinion, having no sanction to back it. This opinion becomes the rule of law once imposed by the State. Therefore, there is a symbiotic relationship between the rule of law and morality wherein morality lays down the limits within which the legal system is formulated, conforming to the specifications of the prevailing norms of morality.
It is quintessential to acknowledge the importance of morality in society. Conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in a shameful, wicked and base activity. Moral turpitude is anything opposed to honesty, modesty, justice or good morals. In Pawan Kumar v. State of Haryana, the expression “moral turpitude” and it was observed as follows: “ ‘Moral turpitude’ is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.” Therefore it signifies a sense of wickedness of character associated with improper conduct with member of the society, contrary to the accepted rule of law.
Brief Co-Relation Between Human Rights, Morality and Law
The French Declaration of Rights of Men and Citizen in 1789 states that, “The aim of every political association is the preservation of natural and inalienable rights of men; these rights are liberty, property, security and resistance to oppression.” These rights spread to rights of women, rights of racial minorities, homosexuals, right of self-determination, etc.
As rightly put forth by Jeremy Benthem, “right is the child of law, form real law comes real rights”. These rights differ from country to country, based on the varied notions and standards of morals observed in such societies having a social disparity and cultural diversity, with widely erratic standards of moral acceptability. What maybe seen as a morally sound piece of art or literature in India, may be considered as harmful to public order and morals in another SAARC country.
Brief Co-Relation between Biosciences, Morality and Law
The fields of biosciences, technology and other forms of Research and Development directly and indirectly are guided by the confines of morals to the extent wherein these morals have been backed by a law.
A restriction is imposed on the subject matter and method of research if such subject matter falls under a prohibition placed under a legal sanction. The human body is seen to receive the highest form of protection from being used as an instrument of commercial gain. An illustration of such prohibition placed is that of the insertion and implantation of a human clone, into the body of a woman. Yet another mild form of constraint seen over the field of research and development is the eventuality that the techniques of research can be manifest as long as they come within the narrow road of what is morally sound and what is morally incorrect.
Viewing Moral Rights in Copyright Law
Intellectual Property Right laws, have boomed, round the world. With the advent in the rise of creativity and ingenuity, the legal system sought to protect the rights of the creators for their works. Moral rights has found its place in Copyright Laws, which is in accordance with Article 6bis of the Berne Convention. These are defined as the author's or creator's special right owing to the right to paternity and the right to integrity.
These moral rights flow from the fact that a creators work is a reflection of their own personality, body and mind thus being an invaluable part of the creator. Therefore, various rights are automatically attributed to the creator, permitting him to restrain or claim damages in the event of any distortion, mutilation, modification or any other untoward act done to his work.
The Variegated Relationship of Law and Morality
There lies a strange difference between legal and moral duties and rights. This difference arises from the recognition or formal induction of moral duties and rights, into legal duties and rights. The presence of moral duties and rights outside the ambit of law goes on to show us how an act or omission can be done or should not be done, rather than how such act or omission has to be done or cannot be done.
Conversion of a moral obligation into a legal one depends solely on the law makers who can include such morally binding obligations into legal obligations. Therefore, this relationship between morality and law is an osmotic one even though morals grow into a law through a parasitic relationship. Furthermore, even if a law may be one that is morally weak it is the duty of the Courts to interpret and apply such law in issue in such a manner that is morally secure or amended.
There is always a minimum moral content to each set of rules that are formulated by a State, in the interests of the citizens. The public and citizens at large have a deep rooted legitimate expectation that laws formulated by the Legislature and enforcement by the Courts will be done in a manner such that the assume the role of guardians of the prevailing forms of morality, reinforcing the values advocated by that particular state through it’s historical development, the religious institutions etc. A sense of social responsibility is placed on law-makers.
However, even a secular state may find within it a division based on the laws formulated on the principles of prevailing morals amongst particular sects of society. A society becomes good or bad based on the ethical values of individuals. These ethical values are placed on citizens who are expected to follow them regardless of whether there would be a penalty placed on them for any derogation from such values. These values and ethical principles are inculcated into legal sanctions to promote and achieve justice and equality in society.
Morality is a commonly seen term of multiple Indian legislations, where in not only is it the duty of a citizen to safeguard public order and morality, the rights of a citizen can be curtailed and limited to the ambit that the right does not cross the boundaries of public order, decency and morality. However it must be noted that moral neutrality does not essentially mean moral indifference.
India, a democratic nation allows it’s citizen’s 6 unrestricted fundamental rights of freedom with constitutional safeguards put in place, to disallow such freedoms from being curtailed. However, one exception placed on the freedom of speech and expression guaranteed under Article 19 of the Constitution of India, lies in the restriction placed to protect decency and morality.
Any form of obscenity or immoral act, exhibited over a platform accessible to the public at large, either through a performance, a documentary, a song, a film, an advertisement, a publication etc. that is published or transmitted, representing an indecent exposition, is prohibited and made a punishable offence, particularly under the Indian Penal Code.
The prevailing trend in SAARC countries, leans towards the stringent protection of any indecent or immoral act against a woman or an indecent representation of a woman’s body, figure or other forms of her, in a manner of being derogatory towards a woman, and triggering a corrupt imagination of the woman. Such prohibitions have been put in place by the Indecent Representation of Women Act, 1986 and various other legislations, to the extent that any indecent or immoral post is strictly prohibited from postage under the Post Office Act, 1989.
The Dynamically Changing Relationship of Law and Morality
The concept of values, in the developing society has recently seen a fundamental change, wherein a value which may have been previously taken into strict applicability, following it religiously, the same value may now have faded away, the moral compass of society steering in another direction with time and other complex dilemmas that they may face, pursuant to an outdated moral value that finds no place in today’s society.
The Naz Foundation case opened out a new avenue for the transformation of law as per the evolving standards of morals in the nation of India. The judgment showed a tug of war between the two sects of society that voraciously debated on the morality and acceptability of homosexual behaviour. The defences taken on either sides were that of the penal provisions placed under Section 277 of the Indian Penal Code, criminalising consensual sexual acts of adults in private backed by moral and religious sentiments. While the argument against this were the violations of Article 21 and 14, guaranteeing citizens equality and the right to live.
This landmark judgment decriminalising same sex activities showed the large steps being taken by citizens, away from the previously prevailing order of nature that discriminated on the basis of historically prevailing morals and religious views that birthed social stigmas around concepts of homosexuality, identifying it as an “unnatural” sexual activity. However, after the said judgment, the law, being amended, rationalises such consensual sex as a normal and natural activity.
Thus, what was morally incorrect has now been made legal by the enforcement of law. It is pertinent to note that even though laws are derived on the basis of what is morally correct, as the purpose of such law is to preserve social order and sanctity in the nation. Yet, the effect of law is that even if an act, socially considered to be immoral, is made lawful by the legal provision, such an act can be openly committed in public, regardless of it’s moral repercussions.
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