Sunday, 22 July 2012

Morality and Law

At the inception of my career I often encountered this nagging query concerning the relation between law and morality. I was frustrated on quite a few occasions where I'd helplessly discover that a certain immoral deed is without any legal consequence. I would seethe with anger at the lack of any remedy for the victim in such cases. To an untrained mind there would hardly exist any difference between the two concepts.   However, while morality may be persuasive, it isn't binding, law is. Hence a person may get away with an immoral deed but he can't do so with an illegal act. . Human response to a wrongful action should be the same irrespective whether it breaks a law or it disregards morality. This theory logically entails a comprehensive understanding of the two terms. But do we actually understand their meanings and respective scopes to be able to appreciate the fine yet profound difference between the two. Before proceeding let me tell you that I decided to share my views on this issue when I read the opinion of one my esteemed readers, wherefrom it appeared that despite his respectable understanding of sociology and politics, he faltered in distinguishing the difference between law and morality.

In one not so old case the Hon'ble Apex Court was seized with a question as to whether a man who promises to marry a woman, cohabits with her and establishes sexual relationship with her but could not ultimately marry her, be charged and convicted under Section 493 of the IPC. (For your benefit I have represented Section 493, IPC as it stands) " Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.—Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." The Bench which was adjudicating this case was a Division Bench (two Judges). The matter could not be resolved as one of the Hon'ble Judges thought that in such cases, what the man may have done may at worst be called immoral or it may be concluded that he isn't a gentleman, if deceit could not be proved behind his acts, whereas the other Hon'ble Judge thought otherwise and found nothing wrong in attaching criminal consequences with such acts. The matter was thus referred to a larger bench for adjudication. Be that as it may, the point which is thus instantly realized is that law and morality are not the same thing even though the fabric of our society is built upon these two founding stones.  In the ancient times there was hardly any difference between the two. Be it the jurists of Greece or Rome or our very own Vedas, morals formed the bedrock of laws. In later years, law would come to be distinguished from morals. The chief distinction being their respective sources. While morals have their genesis in religion and / or conscience, laws owe their authority to the State. Dr. B.N. Mani Tripathy, the celebrated author of "An Introduction To Jurisprudence (Legal Theory)" writes that 'Morals are concerned with the individual and lay down rules for the moulding of his character. Law concentrates mainly on the society and lays down rules concerning the relationship of individuals inter se as well as with the State." It is therefore quite clear that while morality is based on the behaviour, conscience building and goodness of deeds, law on the other hand deals with enforceable norms that mainly intend to maintain order and peace in the community of men. While laws are means to an end (of peace in society), morals are of no such nature. They are to be followed as they are good in themselves.

While it may be immoral to see a man drowning and not help him, to see a beggar starving and not feed him, to see a man falling down and badly injuring himself and not taking him to medical help or to look on at a woman being harassed and standing mute, there is nothing illegal per se about these actions / ommissions. For an act or ommission to be illegal, it must be mentioned to be so by law. If it isn't then that act or omission howsoever despicable or immoral it may be, does not involve any illegality. There are even certain laws which are opposed to morals. For example morals will never hold any man vicariously liable for the wrongful acts of another man, but the law does, in cases where the actual offender is under the employment or agency of the other man who is vicariously liable. e.g. A Govt. chauffeur if causes death of someone by negligent driving, then the Govt. can be made liable for his acts and ordered to pay compensation to the victim or his family.

So are we to conclude that law and morality are completely divorced from each other ?. Well, the answer is No. The interaction between law and morality shapes the administration of justice. People conversant with justice administration system are likely to be conversant with the hackneyed expression "Justice, Equity and Good Faith and Conscience". These terms are largely resorted to by Courts of law in administering justice which tend to uphold good morals, even when the law is not strictly conforming to it. Furthermore in judicial law making and in exercise of judicial discretion, morals play a vital role. When the law offers guided freedom to Courts in taking a certain action, Courts always look to morals for guidance in basing their choice on a sound principle. The view must be to accommodate law and morals in appropriate cases, The Hon'ble Supreme Court, in yet another case (Mr. 'X' vs. Hospital 'Z' (1998)) was approached to adjudicate that, whether in disclosing the fact that the boy is HIV +ve, to his fiancee the Hospital have committed violation of ethics of medical confidentiality. The Court in its wisdom decided that when two fundamental rights (here the fundamental right of the boy to protect the privacy of his medical condition and the fundamental right of the girl to a healthy and disease free life) are conflicting then that right which would advance public morality must be enforced. Hence in that case the morals demanded that the girl should know regarding any communicable diseases that her fiance might be suffering from, in order to take an informed decision regarding their marriage. Thus the Hospital was held to have committed no wrong in informing the girl about the medical condition of her soon to be husband. The Hon'ble Supreme Court has instructed all Judges to "keep their finger firmly upon the pulse of the accepted morality of the day" in order to be able to impart true justice."

Thus as different as they might be, law and morality are like the parallel tracks of a train line. They never seem to meet head on, but are always connected to each other by strong frames of societal requirements and its only when they are held together and uniformly throughout, that society can run smoothly to reach a destination of stability and justice.


  1. Great post. I suppose that because citizens fail to distinguish the two terms, they believe that the government tries to impose their morality by the rule of law. The government isn't in the business of deciding what is right and wrong, you can do that yourself. However, society requires laws to keep things functioning and maintaining order within the society as a whole. At times, the benefits of the society (in the future) exceeds the benefits of individual people, but people don't see that.

    1. Thanks Rehya for your appreciation. I'm so glad that you've perfectly grasped the message of the post.