By Justice Bhanwar Singh & Professor (Dr) NK Bahl
In September 2022, 22-year-old Mahsa Amini died in the custody of the morality police in Iran. She was detained for violation of the female dress code. But the attorney general of Iran simultaneously declared that the judiciary would still enforce restrictions on social behaviour and scarf regulations were being reviewed.
According to media reports, there is no confirmation of closing down the morality police from the interior ministry which is in-charge of it. Incidentally, the morality police has nothing to do with the functioning and orders of the judiciary in the entire hierarchy of courts. Its primary role relates to the enforcement of laws concerning Iran’s conservative Islamic dress code, which includes covering a woman with long, loose clothing and her head with a scarf or hijab. Thus, long black robes and chadors along with a black head covering reaching down to the chest have become the norm for women in Iran and other Muslim countries.
A few countries have the concept of moral policing and Iran is one of them. However, it recently abolished the concept of morality police after wide protests in the aftermath of the death of Mahsa Amini. The concept was introduced in Iran by hardliner President Mahmoud Ahmadinejad for spreading the culture of modesty and wearing of the hijab. In September 2022, the US also imposed sanctions on the morality police.
So what is the distinction between legal and moral duties, their violations and consequent enforcement and penal consequences? Imagine a blind man crossing the road. X, another man in fine health and good vision, was also crossing the same road at the same time. X did not bother to escort the blind man to other side of the road. He walked away and crossed the road, but the blind man met with an accident and died. Similarly, a child was drowning in a river. X, an expert swimmer, was watching this incident, but did not bother to save the child. Is X liable to be prosecuted for not escorting the blind man or saving the child? Was it his legal duty to escort the blind man and save the child from drowning? Did he violate his legal duty? Or was it his moral duty to escort the blind man and save the child from drowning? Is he liable for violation of moral duty? What is the duty of the morality police, if any, in these situations?
Similarly, it is the moral duty of children to obey and respect their parents and elders. But if they do not do so, what will be the consequences? Children residing abroad are not available for such instruction due to their circumstances. There have even been instances where the parents residing in India pass away and the children could not come for their funeral ceremony and other last rites. Such unfortunates arrive in India according to their own convenience. Where is the implementation of moral duties? Are there any moral laws to punish such children neglecting their parents?
In Queen vs Dudley and Stephens, the issue of moral necessity was raised. In this case, three seamen and a boy were cast away in a storm in an open boat. Food and water in the boat got over. They had to drink their own urine to survive. In order to save themselves from death, as the days passed, they decided to kill the boy named Parker and feed on his flesh. Three days later, the three survivors were rescued with blood and human flesh under their fingernails. The jury was reluctant to pronounce Dudley and Stephens guilty. They pardoned them, saying that their crime was washed away by inevitable necessity. However, the jury gave a “special verdict”, an unusual judicial procedure, by referring the case to a higher court. The Queen’s Bench of five judges, however, held that no man could take another’s life to save his own. They were found guilty of murder and awarded death sentence, but later on, their sentence was reduced to life imprisonment. It was held that necessity is no defense for a crime. The Crown reduced their penalty to six months imprisonment on the ground of mercy. Was it the legal/moral duty of the sailors to save the life of the boy even if they were dying of hunger? Are morals the basis of each and every rule?
Truly speaking, law and morality are two different subjects and their area of operation is also different. Laws are a defined set of rules, whose violations are punishable. Moral laws, on the other hand, are not well defined and there are no legislative sanctions behind them so as to punish the violator.
In India, we have the police to prevent the commissions of crimes and bring the perpetrators to book. Their job is to investigate violations of laws and file a charge sheet in a competent court so that they may be tried and punished, if found guilty. But we do not have the idea of a moral police for the protection of the moral rights of citizens. This task is, at best, done by parents and elders. There is no State machinery to do this job. There are no judicial decisions on this aspect either from the Supreme Court or any High Court.
If we compare the relationship between law and morality, it can be safely said that law deals with and regulates external conduct, whereas morality deals with and regulates internal conduct. In other words, morality appeals to the conscience, whereas law acts externally through sanctions imposed by the sovereign authorities. Moral sanctions are, truly speaking, social sanctions or internal sanctions. If external sanctions are introduced in enforcing moral principles, then morality will become an externally working power, which is presently not the case. Morality neither frightens nor commands, but enjoins through an appeal to the conscience.
To illustrate, if a man or woman is good, it is because of their love for goodness, and not because of fear of sanctions or punishment. The external sanctions of morality are basically social sanctions, with a view to enforce religious fanaticism, whereas the internal sanctions in morality are in the form of “pleasure” as a result of good actions, or “pain” as a result of the pricking of the conscience because of a bad action.
The relationship between law and morality can be gauged from three perspectives. Morality may be the basis of law, it may be the test of positive law or it may be the end of law. In primitive societies, all rules originated from a common source and the sanction behind them was of the same nature. When the State came into existence, those rules which were important from the angle of society were taken up by the State and their observance was secured by putting punitive sanctions. These rules took the shape of laws.
But the set of rules which were very good for society and the State could not ensure that their observance continued in their shape and are known as morals. Law as well as morals originated from same source, but in the course of their development, they differed from each other. In Queen vs Dudley and Stephens, necessity or moral necessity for preserving one’s life by killing a boy and eating him was held to be unjustified.
When natural law theory was prominent in 17th and 18th centuries, it was argued that positive law must confirm to natural law. Morals were the test of laws. According to natural law theory, any law which does not confirm to natural law is to be disobeyed and a government making such law is liable to be overthrown. In modern times, this proposition does not hold good.
Moral principles are often considered to be the end of law. The aim of law is to secure justice which is based on morals. According to the sociological school of jurisprudence, law has always a purpose; it is a means to an end, that is, welfare of society. This view appears to be at par with the utilitarian theory of law which says that the immediate end of law is to secure social justice by securing harmony between rival claims and demands.
Law and morality are not the same. Many things may be immoral, but not necessarily illegal, such as live-in relationship. Khap panchayats were declared illegal and honour killings were condemned by the Supreme Court as being against laws and morality. The law in a majority of cases mirrors morality, although the percentage of morality may differ from one law to another. When morality can be enforced as part of law or through law, then what is the harm in enforcing moral principles in absolute? The punishment, on violation of pure moral principles, may be lighter or strict, and should be regulated by proper legislation to be enacted by parliament.
In view of this idea, the decision taken by the government of Iran in abolishing the morality police comes under shadow, especially in the context of a vibrant democracy like India.
—Justice Bhanwar Singh is a former judge of Allahabad High Court, and Dr NK Bahl is former District & Sessions Judge, UP