Abdul Majid Banday
@the_news_21
Srinagar: The recent murder of an eight-year-old boy, Talib Hussain in Kashmir has generated a fierce debate on social media. These days people often speak about law and morality. This discourse dominates almost every section of our society cutting across religious, political and social barriers. In Kashmir, law and morality are often seen confronting each other.
Most people opine that advocate need not appear before the court to defend the murderers in this gruesome incident. Others say, no person ought to be punished unheard and law must take its own course.
People often say judges ought to listen to their conscience while dealing with cases involving moral turpitude of a person. Similarly, advocates who deal with cases related to theft, dacoity, murder, rape and timber smuggling etc. are looked down by the society at large.
For court officials which include judges and advocates, this is simply a legal matter, while for the public, this is something legal professionals must disown and discourage by refusing them a legal hand. Thus, for some people law and morality do not intersect each other, while for others law and morality must go hand in hand.
How far are these diverse arguments true? Let us analyse.
During early days of our modern society, law and morality were treated with the same yardstick. The law was mainly based on religious precepts and beliefs. Almost all major religions of the world treated law at par with morality. It was believed that law, religion and morality cannot be separated from each other.
In fact, religion dominated everything. But, with the passage of time, society started treating both of them as separate entities. While morality remained, something related to conscience and divine in nature, law was treated as the dictum of the ruler. However, traces of morality are even present in the modern law. The legislature and judges equally try to make and interpret laws that uphold the moral values.
Various principles, for example, principle of natural justice and principle of equity etc. are some of the classical examples in this regard. Therefore, law and morality seem to be closely interrelated.
Law is made by the ruler of a state. It is often man made which deals with society. It deals with the relationship of the state with individuals, between different individuals themselves and their conduct with each other. More especially, law is concerned with conduct of the individual. Technically, it does not have a universal application.
Having a relative value, it varies from place to place, region to region, state to state and from time to time. Its basic purpose is to maintain law and order and aims to maintain smooth functioning of the society at large.
Morality, on the other hand, is a divine concept. It is based on religious teachings and the inner conscience of a person. Therefore, it is more concerned with the individual character of a person. Morals look into the motive of a person. It has universal application and value. Observance of morality is the matter of individual conscience. However, the nature and degree of morality also varies from state to state, place to place and time to time.
A good thing at one place may invite a wreath; at the other place it may not. Thus, we see homosexuality a normal matter in Europe while as in Kashmir it is a stigma. Similarly, putting garbage at public places is a routine in the underdeveloped and developing world, whereas, developed nations treat it as an immoral and unethical act which even attracts harsh penal provisions there.
It is important to mention that commission or omission of some acts do not stand the test of morality and law and vice- versa. Thus, we see there are many instances where the law of land cannot do anything to apparently immoral acts. For example, if a neighbour of any rich person is dying of starvation, he is not legally bound to help him with the food and grains. No court on earth can punish any such person for his stone-heartedness.
Similarly, if a person witnesses any other person committing a suicide, he is not legally bound to stop him. Any such person may with a clean legal conscience allow that person to die. No court can try such a person for his insensitivity towards the act. Additionally, if a person does not show any respect to an ill person or a baby, he cannot be dragged to the court for the absence of his natural affection.
Moreover, a person walking on a road with his head hanging in pride cannot be questioned in any court of law. Last but not the least, there is no law to question the habitual idleness of a person.
Likewise, law seems to favour some acts which seem to be apparently immoral. For example, a person may be tried for the rape of his own wife. A witness cannot be forced to give witness against his will. A person cannot be tried for rape if he or she did it with a consent. There is a bar or limitation to certain types of grievances or civil suits. Similarly, every single citizen of a country is presumed to know the law of the land which is not possible.
However, there are certain instances, where a crime is treated equally in law as well as morality. Some classical examples of this category include, rape, murder, theft, robbery, kidnapping, hurt and arson.
To sum it up, it seems, morality and law are working very well in their respective domains. Both exist only to maintain the social order of the society. Whereas the former appeases the conscience, the latter needs sanctions. The ultimate aim of both of them is to maintain order of the society. Therefore, in this sense, law seems to be a handmaid of morality.
Law cannot make saints in the society but it only helps us to behave as good human beings. Additionally, where law is bound by limitations, morality comes to the rescue. In fact, both of them are inseparable. Any absolute divorce of law from morality and vice- versa will consequently yield bad results.
