Author Name:   manishkumargoga

Ever since the advent of human society there has been a tussle and fight between moral values and immoral acts. In the preventive societies of early age, law of jungle prevailed and might was considered to be right. As the society became organized with the passage of time under and the concept of state came into being, the debate between good and bad became active with the advent of knowledge, education and teaching of saints, philosophers and other learned men.

Moral Education necessary part of the Education

“Morality is the herd-instinct in the individual” - Friedrich Nietzsche

Ever since the advent of human society there has been a tussle and fight between moral values and immoral acts. In the preventive societies of early age, law of jungle prevailed and might was considered to be right. As the society became organized with the passage of time under and the concept of state came into being, the debate between good and bad became active with the advent of knowledge, education and teaching of saints, philosophers and other learned men. Certain acts came to be universally acknowledged as good virtuous. Even if we scrutinize the pages of history the stories of conflict between moral and immoral act were in existence. In the epic age of “Ramayana” and “Mahabharata “ mankind learnt the basic lesson that it is morality and values that always triumphs in the end . Further, the glimpses of world history clearly show that the invaders just to satisfy the moral intention cost widespread destruction and devastation but despite all these nefarious acts , the moral value in human kind could not curved or destroyed . Moreover, on the other hand, many rulers who became examples upheld the moral values of the human society.

Historical origin of Morality

The ancient Greeks put a theoretical moral foundation under law by the doctrine of natural rights. At Rome, in the classical period, Greek ethical philosophy was drawn upon. The Roman jurists sought to discover the content of the natural law and declare it. They gave us an ethical philosophical natural law with an ideal form of Roman legal precepts. The middle Ages put a theological foundation under natural law and Christian morals were considered as the basis of law. Natural law theories, which had a rational moral foundation, became very popular in seventeenth and eighteenth centuries.

In England, with the rise of the court of chancery and development of equity, ethical ideas from the casuist literature of the sixteenth century and the general notions of right and wrong held by chancellors were made liberalizing agencies. In the Continental Europe of the seventeenth and eighteenth centuries the philosophical ideas of juristic writers upon the law of nature were used in the same way. Thus, moral duty was turned into legal duty. The individual human being as the moral unit became the legal unit. It was conceived that moral principle was to be also a legal rule and consequent progression of moral ideas into legal ideas. It clearly shows that how once a moral principle became an equitable principle and then a rule of law in all legal systems of the world.

At the end of the eighteenth century Kant replaced the rational foundation by a metaphysical natural law used to demonstrate the obligatory force of the legal order as it is. The analytical jurists argued that no foundation was needed for law as the law stands upon its own basis as a system of precepts imposed or enforced by the sovereign. Down to Kant, positive law had been contrasted with a body of ideal moral law on the one hand and natural law on the other, Kant instead moral law on the one hand and natural law on the other. Kant instead set over against positive law the immutable principles governing the making of law, by which law and law-making must be judged. Kant wrote that positive law and doctrines were regarded as products of human wisdom. However, a study of the historical development of moral ideas makes it quite clear that the primary source of moral commands cannot be found in the autonomous reason of individuals. They owe their origin to the strong desire of organized groups to create tolerable conditions of social existence.

Law and Morality

The nature of law and morality and their relationship with each other has been a subject matter of unending discourses, discussions and controversies between philosophers, thinkers, jurists, judges and social scientists from the ancient period. Confucius in China, Manu and Buddha in India, Socrates, Plato and Aristotle in Greece and Ulpian and Paulus in Rome to modern times as is seen amongst contemporary jurists. The question whether morality is implicit in law or law is devoid or independent of it has led jurists to speculate on the nature and function of law and morality and their inter-relationship. While law and morality are part of human life and both equally govern and regulate human conduct in every society whether primitive or modern yet the controversy about the relationship between them only shows that law or morality alone are not adequate and self-sufficient but both are inseparable, indispensable and necessary elements of social ordering.

Morality: A Meaning
It is only in the recent past that a typological attitude on law-morality relationship has concretized in two diametrically opposing direction. There are some jurists who do not define law minutely and identify it with morality, justice and theology in broad and general terms. Whereas, there are others who divide law and morality into two water-tight compartments making no room for their fusion and who strongly believe that separation between the two is necessary and desirable for proper understanding of their nature and role in society. The task, therefore, entails some enquiry into the nature of law and morality as such. However, it would be appropriate to analyze conceptually the meaning of the term ‘morality’ vis a vis law to delineate their respective contents and contours. The term ‘morality’ is derived from Latin expression ‘mores’ meaning customs. It is not certain how morals were mores. The French moeurs connotes a high standards of conduct and significantly the German ‘Sitten’ (ethical customs) includes in its compass etiquette and politeness. Thus morality identified as law is a body of accepted code of conduct in terms of certain standards and ideals approved by society. Such moral conduct is positive in the sense obeyed listens to the still small voice, inner voice—the persuasive and not coercive which inspires observance and obedience from within not from without. To abide by such moral rules is certainly a virtue before a court of morals but not necessarily before a court of law. Morality in its true sense may mean moral conduct, right conduct, virtuous action, right and good judgment which is universally correct, just and good for individuals because it is sanctified by religion and approved by scriptures. Morality, therefore, is not merely a body of abstract ideals but of living rules which are sanctioned by the moral codes of a community and guide and control human behavior in the ordering of society. Indeed the laws of all communities had been originally derived from moral philosophy and religion. Accordingly a balanced harmony, mingling and fusion between morality and law finally culminated in different Codes Hammurabi, Confucius, Justinian, Manu, Hebrew, etc. in different countries at different intervals of history. All of them adumbrated only laws which did not run contrary to moral precepts. All these Codes made a bold attempt to identify values, traditions and customs-the grass roots of morality which exhorted purity of means and ends for establishing a just social order and instilled amongst men truthfulness, facling of equality, fraternity, happiness, etc. It is this moral law which makes man to be duty bound and which knows right to be right and wrong to be wrong.

Fusion of Law and Morality before Nineteenth Century

It would not be inappropriate to say that before nineteenth century the jurists and philosophers did not think on the urgency of differentiating between law and morality. The reasons for this are that the ethos of philosophy and religion has put forth ethical principles and moral rules as primary and efficacious means of social control which served the needs of all societies. Second, the basis of moral rules has always been reason, rationality or divine power of some such higher idea which appealed to the inner-conscience of individuals. Third, in such moral rules people had innate faith and conviction because o f their utilitarian base in the sense that such moral rules were either guarantors of individual liberty, human rights, natural justice, national independence of social justice. For instance, even Plato in his Republic makes the philosopher king an embodiment of all moral values who is a guardian, protector and ruler of the people. Aristotle too emphasizes on moral virtues for securing real happiness and considers moral practices and law as necessary brakes against arbitrary actions of individuals. Man being a social animal the foundation of society is based on moral cum legal order. Manu, the great Hindu law giver, envisaged of a universal moral order based on truth, non-violence, purity, control on desires and greedlessness in others property or things. Such pragmatic rules based o n experience are in reality the quintessence of dharma in order to distinguish right from wrong, good from bad, just from unjust and moral from Immoral. These rules of morality considered at par with law have common origin, common objectives but subsequently acquired divergent directions and developments.

In the Roman period also law and morality were fully integrated. Cicero the great Roman lawyer’ influenced by Stoic philosophy of reason as the basis of law and justice emphasized reason as the ultimate ration for measuring justice and injustice, right and wrong conduct. He was of the view that a morally unjust law cannot be considered a good law. The doctrine of ‘jus gentum’ therefore, embodied all the characters of morally just law with a view to determine the efficacy of ‘jus civile’ finally the validity of both ‘jus gentium’ and ‘jus civile’ in turn was determined in accordance with higher principle of ‘jus naturale’ which meant equality, just and right conduct. The philosophy of law as per reached by St. Augustine and St. Thomas Aquinas is also more or less a fusion of morality and law based on right reason reflected in Divine God.

Relationship between law and morality: A perspective of different schools

So far as the relation between law and morals is concerned, in the early stages of the society, there was no distinction between law and morals. The ancient Hindu jurists too did not make any distinction between law and morals. For them morals have their source in the religion or conscience. In the Post-Reformation Europe, it was asserted that law and morals are distinct and separate and law derives its authority from the State and not from the morals. However, when the Natural Law theories became popular in the seventeenth and eighteenth centuries, law again came to be linked with morals. In the nineteenth century under the powerful influence of analytical positivism, only legal norms were made the subject of jurisprudence and morals were excluded from the study of law. In Kant’s theory law and morals are distinguished.

Historical jurist banished ethical considerations from jurisprudence and rejected all creative participation of judge and jurist or law-giver in the making or even the real formulation of the law. The historical jurist merely found that all universal ideal principles to which positive law must confirm were not principles of morals but principles of customary action. They were discovered not by reason but by historical study. The morals, as such were quite out of the domain of judge and jurist. However, it is submitted that even customs immemorial should not be opposed to morals.

The revival of natural law in the twentieth century is new theories of legal precepts as having for their end the realization of moral values. Consequently, there is a revival of the old subordination of jurisprudence to ethics. As far back as 1878, Jellinck made the transition from a contrasting of law and morals to a subsuming of the former under the latter. Law, he said, was minimum ethics. So regarded, law is only a part of morals. In the broader sense, morals include the whole. The view of Stammler is that jurisprudence depends much upon moral ideas as just law has need of ethical doctrine for its complete realization. Positive law and just law correspond to positive morality and rationally grounded ethics.

However, there is a perceptible change in trend of thought in modern times. The sociological approach to law indirectly studies morals also. Their field of study extends to the various social sciences including morals. For them, jurisprudence, ethics, economics, politics and sociology are distinct enough at the core, but shade out into each other. When one looks at the core, the analytical distinctions are sound enough. However, all the social sciences must be co-workers, and emphatically all must be co-workers with jurisprudence.

It is to be noted that the retributive and expiatory theories of punishment too had ethical basis. However, the criminologists believe that ethical basis has been substituted by sociological base. It is submitted that sociological approach is of moral only and nothing else. As Keeton writes: “In developed societies at any rate, the pendulum will again swing from sociological to the ethical approach”. As the social utilitarians put it, the immediate end of law is to secure interests. Morals are an evaluation of interests. Therefore, jurisprudence is a branch of applied ethics and law-making is not primarily a juridical but an ethical process.

Influence of morality in law-making: Indian position

The values which India cherishes have been incorporated in the Constitution as Fundamental Rights and Directive Principles of State Policy. These include equality before the law, freedom of speech, religion etc. Broadly speaking, these are the values prized by society at the present day not only in India but throughout the democratic world. These values are deeply rooted in the great epics and greatly embedded in the Vedas etc. Krishna Iyer J rightly observed “we cannot regain our past glory unless we realize the importance of morality in our present legal system”. Just as morality fosters and strengthens the soul in the same way morality in law provides greater force to it and commands voluntarily obedience from the people.

Even in ancient Hindu law great importance was given to sadachar which meant ‘good conduct’. It represents the principles of good behaviour. It deals with the principles of right and wrong. It relates to good and virtuous living. It is equal to righteousness and honesty. Further, custom must not be immoral or opposed to public policy or against equity, justice and good conscience. In Madhura Naikin V/s. Esu Naikin, the Bombay High Court has held that the custom of adoption of girls for immoral purposes is illegal as it was designed to perpetuate this profession. Likewise customs regarding divorce have been held to be immoral, a custom permitting a woman to desert her husband at pleasure and marry again without his consent etc., have been held immoral. A divorce granted by the caste panchayat also has been held opposed to public policy and could not be enforced by the courts. The custom permitting marriage with daughters’ daughter has also been held immoral.

It is rather unfortunate that the modern law bothers little about the moral or ethical values of life. It is meticulously confined to rights and legal obligations and is silent about moral obligations or improprieties. A society is bound to decay without maintaining high standards of decency and morality. It is imperative for its preservation that the base, carnal and low instincts of its members must be curbed. Hence the need arose to include the ground “decency and morality” in article 19(2) of the Indian Constitution to justify restrictions on freedom of speech and expression, which may otherwise be conveniently abused for deliberately lowering the public morals. The Supreme Court in Ranjit D. Udeshi V/s. State of Maharashtra by applying the Hicklin test upheld the constitutionality of section 292 of IPC. This clearly indicates that the framers of the Indian Constitution did not completely ignore moral element in law. The courts, however, are expected to preserve the ethical values of law by judicial intervention whenever the laws framed by the legislators are vitiated by immorality. The moral fabric of Indian society can be preserved if the judiciary acts as an effective check on legislature and executive when they attempt to outrage public morals by their nefarious activities.

In Mr. ‘X’ V/s. Hospital ‘Z’, the Supreme Court has held that although the right to privacy is a fundamental right under article 21 of the Constitution, it is not an absolute right and restrictions can be imposed on it for the protection of health or morals. Right to marry is an essential element of right to privacy but is not absolute. Marriage is the sacred union, legally permissible, of two bodies of opposite sexes. The court said that in case of a conflict between two fundamental rights available under article 21, the right which would advance the public morality or public interest would alone be enforced through the process of the court.

Another example at balancing conflicting rights is seen in T.K.Rangarajan V/s. State of Tamilnadu. The Supreme Court in this case deliberated upon the friction between the individual interests and the society’s interest at peace and well-being, and concluded that where larger interests of the community are in question, the individuals freedom of expression takes a backseat. It is submitted that the court gave weightage to maximum satisfaction of interests – the current natural philosophy and held that there is neither any fundamental, legal or any moral right to strike on the part of workmen. In this case the court reiterated its earlier ruling in Communist party of India (Marxist) V/s. Bharath Kumar and Others for holding that a bandh imposes unreasonable restrictions to the fundamental rights of the people in general causing hardship to them.

To take a simple illustration a debt barred by time is irrecoverable under the law but such law is clearly against morality. Again the Special Bearer Bonds (Immunities & Exemptions) Act, 1981 which appeared like a reward for the tax-evaders by granting immunities and exemptions under the Income Tax Act, 1961, Wealth Tax Act, 1957 and the Gift Tax Act, 1958, while burdening the honest tax payer with tax-liabilities under these Acts, was against all norms of morality. The above legislation was challenged in the so-called Bearer Bonds case.

In Bearer Bonds case the petitioners contended that morality is the foundation of laws and no law is valid if it is manifestly lacking in moral foundation. The Act that confers legal sanctity to black money and rewards tax-evaders and black marketers is totally devoid of all standards of morality and vitiated by gross immorality and is manifestly against public interest. However, the Supreme Court by majority judgment held the Act valid because it helped to unearth bulk of black money, which would otherwise, remained secreted, and hence the enactment was in the interest of national economy. It is submitted that this decision completely overlooked the reasonableness of the impugned legislation on ethical grounds.

In the case of pollution around the Taj Mahal, air pollution in Delhi and In Re Noise Pollution the Supreme Court has been virtually setting policy on critical issues of the environment. The ban on smoking in public places ordered by the Supreme Court was another instance of activism as was the order drafting detailed rules for protection of women from sexual harassment in the work place. Many of those orders were based on creative legal reasoning that read into the right to life. In no other democracy are such issues of policy decided by the judiciary. It is submitted that the Indian judiciary known for extended activism has been doing social and economic policy making in the above said areas. It is in line with ‘policy’ approach to law in the place of technical ‘doctrinal’ approach to law as advocated by Lasswell and MC. Dougal. It is submitted that morality plays a significant role in such policy choices.

The orders of Supreme Court in PUCL V/s. Union of India, bear great relevance for social rights jurisprudence. The human rights approach of the Supreme Court ordering payment of salaries to the starving employees of PSUs who were denied their salaries for a long time is another shot in its arm. Incorporating of international legal norms into the municipal field by the Supreme Court though they are of soft laws is a welcome development. The apex court’s decision in ONGC case that an award could be set aside if it is contrary to justice or morality was reiterated in Hindustan Zinc Ltd. V/s. Friends Coal Carbonization.

However, the Supreme Court has overlooked the rights of the poor while allowing the construction of mega projects. For example in Narmada Bachao Andolan V/s. Union of India, the court’s ideology tended to subordinate environment to development. In P.A.Inamdar V/s. Maharashtra, the court’s ruling was against social justice wherein quota system was done away within private educational institutions. This was neutralized by constitutional 93rd Amendment Act, 2005 in the same way when the first ever constitutional Amendment, 1951 was passed to undo State of Madras V/s. Champakam Doroirajan. The legislative measure seeks to harmonize the claims of the citizen’s right to freedom with the obligation of the state to fulfill the promise of social justice to weaker sections. This clearly shows that there is a set back to pro-poor interpretation of the Supreme Court inspired by value-oriented jurisprudence. Is its due to change in economic policy of the government? Does it augur well particularly when country’s economy is in transition? This will definitely lend its credence to the statement that the shift towards market economy does make social justice irrelevant.

Conclusion:
In ancient times, education was imparted in institutions as Gurukuls where education was given with much emphasis moral education. From the very childhood , child was taught was is good and bad ,what is moral and immoral .Moreover, ancient Hindu law great importance was given to “sadachar”which meant ‘good conduct’. it represents the principles of good behaviour which relates to good and virtues life . It is equal to righteousness and honesty. On the other hand in the modern times the sphere of education has undoubtedly widened and several new fields of education and technology have emerged but it is regrettable that nothing serious is being done modern educational institutions to teach morality when today it has become clear that , Moral education enhances the personality of the individual and his helpful in honest performance of duties .It is high time when students in school ,colleges and universities should be taught moral education as the part of their educational curriculum. Student must be taught as to what are his moral duties toward his family, society, state and fellow friends. This education would be helpful in removing the corruption and crime from the society and will make human life much more peaceful, helpful, happy and worth living.
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* Assistant Professor of Law, Law College Dehradun, Uttranchal University, Dehradun, Uttrakhnad
# Interpretation of Legal History 98-99 (1967) Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# See, Roscoe Pound, Law and Morals 31-9 (The Mc. Nair Lectures, 1969) Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# Dr.Johnson said that, the law is the last result of human wisdom acting upon human expeience for the benefit of the public. Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# B.F. Skinner, Beyond Freedom and Dignity 20(1971). Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# Kant, The Metaphysical Elements of Justice 43-44(1965). Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# Roscoe Pound, Law and Morals 110 (McNair Lectures, 1923). Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# Ibid.
# See V.D. Mahajan, Jurisprudence and Legal Theory 103 (2005). Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# Keeton, The Elementary Principles of Jurisprudence (1949). Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.
# Ibid.
# (1880) ILR 4 Bom 545
# Ibid.
# AIR 1995 SC 495
# (2003) 6 SCC 581
# 1998 (1) SCC 201
# Ibid.
# M.C.Mehta v. Union of India AIR 1997 SC 735.
# M.C.Mehta v. Union of India AIR 1996 SC 2231.
# (2003) 9 SCALE 835 at 840
# (2006) 4 SCC 445
# AIR 2005 SC 2994
# AIR 2005 SC 3226
# AIR 1951 SC 226
# Manu and Sadachara, aspect of Dharma corresponds to law, which in modern sense means a code of conduct that modulates human relations. Quoted from, “Role of morality in law- making: a critical study”, Notes and Comments, Law Journal of the Indian Law Institute , vol-49, April-june2007.

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