DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY

2019-2020
Synopsis

SEMINAR PAPER
ON
LAW AND MORALITY

Morality is Backbone of Law: Myth or Reality

(With reference to Shyam Narayan Chouksey V Union Of India)

SUBMITTED TO: SUBMITTED BY:

Dr. Adbullah Nasir Vaibhav Verma
Assistant Professor (Law) Enroll no. 140101157
Dr. Ram Manohar Lohia B.A.LLB (Hons.)
National Law University, X Semester (Section: B)
Lucknow.

1
ABSTRACT.

The conception was, morality has been an integrated part of law as part III and part IV of
Indian Constitution also supports the same but Modern legal positivist approach regards it
obsolete and I found, today Law can be identified without reference to morality except
where law accepts the moral criteria for creating it. Morality stems from individual’s
conscience and values of a society, therefore, what morality means to me, may not be to
you. It is very technical to create a law on a point when there is conflict of opinion and
morality always differs from individual to individual, however, morality cannot be invariably
on the back of every statute. If something is immoral does not inevitably makes it illegal and
viceversa. This makes difference between the two. My research paper is significant in order
to determine the role of morality in drafting laws, to what extent it affects laws and
available alternatives.

“The distinction between morals and law can be formulated very simply. Morality furnishes
the criterion for the proper evaluation of our interests; law marks out of limits

within which they ought to be confined.” - Korkunov

AIM AND OBJECTIVE

The present paper deals with law and morality, how they differ from each other. The
purpose of author is to critically analyze the two terms, considering the contemporary
scenario. These two terms are very much connected yet they are distinct.

This paper also aims at studying the recent and past judgements and the following events
which took place in the country, after the court mandated playing of national anthem in the
threatres and later modified its order. The main objective is to study the relation of the
judgements and the morality the society possess.

LITERATURE REVIEW

2
Supreme Court Order on national Anthem (November 2016) has asked theatres to play the
national anthem before a film show begins “for the love of the motherland”. This has yet
again started the debate over the personal freedom and legal obligations in present times.
This is in the backdrop of growing intolerance. The point is whether nationalistic pride can
be injected by such legal dictates. Some commentators are arguing that this compulsion is a
undermining of civil liberties. Let’s recall that few decades ago, in many places national
Anthem used to be played at the end of the film screening. The observation was that many
in the audience will leave the hall during the anthem. Now at many places, like in
Maharashtra, the playing of anthem has been started in the beginning of the film screening.
The Supreme Court order of the two judge bench; court makes it mandatory for this singing
to be done all over the country and this order also asks for closing of the doors during this
period.

There are laws to ensure the protection of national symbols like National flag. There are
some landmark cases which have shown the conflict between the state norms and the
individual liberty. In the well known ‘Jehovahs witness’case the students belonging to
Jehovah faith had refused to sing the anthem; their argument being that it would
tantamount to idolatry not permitted by their faith. The children were expelled by the
principal of the school. The matter went up to Supreme Court which ruled in favor of the
students and their expulsion from school was revoked.

In a democracy there is a balance between the individual rights and the duties towards the
state. The whole Constitution is an attempt to bring in ‘rights of citizens’ and ‘freedom of
expression’ to the fore. While a decade ago the Court could rule in favor of the individual
liberty; now it seems the trend is just the opposite as ‘love for mother land, nationalism,
patriotism’ are being flaunted at the drop of the hat. All those not agreeing with the policies
of the ruling government are being dubbed anti national, it is being said that they are ‘not
patriots’. Even standing in queue for withdrawing cash from ATM or Bank is being glorified
as an act of patriotism, for the sake of the country. This is in the wake of the painful
demonetization brought in by Narendra Modi. The present Court order comes in a back

3
drop of the times when words patriotism; nationalism are dominating the scene in the rule
of BJP Government.

We also recall that since Modi Government has come to power the patriotism/nationalism
of those who are dissenting from the ruling Government’s policies are being challenged by
the ruling dispensation. In case of Rohith Vemula the activities of the Ambedkar Student
Association were dubbed ‘anti-national’ and so the whole pressure of the MHRD minister on
the complying Vice Chancellor to expel him from Hostel and stop his fellowship, leading to
Rohith’s suicide. In an attempt to close down JNU, the Government resorted to nationalism
ploy and the doctored CD was played on some TV channels to demonize Kanhaiya Kumar
and his friends. He was labeled to be Deshdrohi (anti national). It is another matter that
Kanhaiaya Kumar had not shouted those ‘slogans’ and that even Constitutional position is
that mere shouting of slogans does not tantamount to anti-national activity. In the present
charged up atmosphere, the hysteria around patriotism and nationalism, in Goa a wheel
chair bound person was beaten up for not standing during singing of national anthem. In
Mumbai a young script writer was heckled out of cinema hall for not standing during the
anthem.

Such growing atmosphere of intimidation and imposition around issue of nationalism is a

matter of concern for the political culture which is being built up in the country. As such in
India the whole concept of patriotism begins in a very strange fashion. During kingdoms the
kings were eliciting and demanding absolute loyalty from their subjects. The punishments
for not complying with such patriotism-loyalty were severe, cutting off hands, meting out of
death punishment etc. During colonial period we had two types of nationalism which came
up simultaneously. On one hand were the rising classes of Industrialists, workers and
educated classes veering around anti-colonial movement for secular democratic India. They
opposed the British rule. They were not patriots. The nationalism in the name of religion
began with the Kings and landlords coming together and pledging their loyalty to British.
They were patriots for Queen of England. Their organization, United India Patriotic
Association was the progenitor of nationalism in the name of religion, Muslim Nationalism

4
and Hindu Nationalism. These formations did remain loyal and patriotic to British rule all
through.

The anti colonial nationalism was comprehensive, inclusive and not merely ethnic
nationalism. The nationalism of Muslim League and Hindu Mahasabha-RSS was built around
their religious identity. The nationalism built around democratic values and secularism, the
one led by Mahatma Gandhi had inherent liberalism in it. Post Independence the
nationalism of the communal organization as such has the feudal mind set of unquestioning
loyalty to the state and no scope to have differences from the ruling state. That is what the
Kings demanded from their subjects. That’s what dictators demand in present times. The
present atmosphere created by RSS-BJP smacks of the mindset of the norms of
authoritarian systems. In these systems like Kingdoms, Kings were supreme and people
were mere subjects. In dictatorship again the rights of citizens are undermined. As per RSS-
BJP politics state is supreme and citizen should be loaded with duties alone. It seems the
present judgment is has the overbearing influence of such a mind set.

Ultra nationalism, while operating in the broad democratic setup, is an attempt to instill the
values of dictatorial state. Hope such a realization will prompt the Supreme Court to revisit
the judgment with a larger bench.

TENTATIVE CHAPTERIZATION

1. The notion of law and morality

2. The notion of law
3. The notion of morality
4. National anthem and national honour
5. Law vs. Opinion
6. Judicial censorship and judicial activism

5
RESEARCH QUESTION

● What is nexus of law and morality?

● What is the difference between law and morality?
● What does morality and jurisprudence have to provide to explain it?

RESEARCH METHODOLOGY

The research methodology used in this project is purely doctrinal, this means the data and
information used in the project are collected through pre published sources. Sources used in
the project to get the detailed data is collected from magazines, books and e-sources.

RESOURCES REFERRED

The following articles and books have been referred. The list is not exhaustive, many other sources will be
added in the original research,

● Draft National Policy on Criminal Justice, Ministry of Home Affairs,

Government of India, 2007 7 Ranjit D. Udeshi v. State of Maharashtra AIR
1965 SC 881 at p.885.
● Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969) 2 SCC 687 at
p. 693
● http://legalserviceindia.com/articles/lmor.htm, October 2011
● http://www.cygneis.com/ethics/gamoralist.htm, October 2011
● http://www.sociologyguide.com/morality/law-and-morality.php, October
2011
● http://www.convertjournal.com/2011/09/morality-vs-law/, October 2011