In a multi-cultural and multi-religious society like India there is an insufficient agreement on ethical issues for the law to enforce anything that can be seen as an ethical consensus.
Morality governs private, personal interactions. Ethics governs professional interactions. Law governs society as a whole, often dealing with interactions between total strangers.
All laws are more or less derived from morality which provides the reasons behind laws enacted to govern human beings. For instance, laws against killing and stealing are based on Divine Command theory. It is unimaginable to think about a law which doesn’t concern morality.
Morality without law
The sole purpose of law is to provide a system of dos and donts in order to guide human beings in their behaviour and to protect them from doing harm to persons and properties. Some laws have less moral import (e.g. Legalisation of Betting) than others (e.g. Laws against Killing) that does mean morality can be equated with law and vice versa.
Morality is not necessarily based on law. It does mean that a moral society could be formed without having sound legal system also. However, role of law is quite crucial in enforcing morality through a system of reward or punishment.
Ethics and law
There are various views on the relationship between ethics and law. Law is used as a device to enforce the ethical views of a society (Customary morality). Law abiding citizens are those who behave in a way that is ethically acceptable in the society.
Law permits behaviour that many people consider ethically unacceptable – gambling, high-pressure selling, arms dealing, alcohol, non-marital sex (consensual), nudity, homosexuality, etc.
Loopholes in the system
It is even argued that Law should not be exploited in order to enforce ethical behaviours rather it should ensure maximum permissible liberty for citizens. If law doesn’t intend to promote liberty and is too restrictive in nature, it can be regarded as unethical. For instance, it is argued that population control laws attempt to arrest population growth through coercive means; instead people should be made aware of family planning techniques and given freedom to decide how many kids they want to produce.
There are no legal restrictions against gay sex or gay expression within India. Couples living outside marriage have some limited cohabitation rights, colloquially known as live-in relationships.
Religious beliefs, astha and art are other complex issues that dwindle between morality and law.
The Indecent Representation of Women (Prohibition) Act, 1986 reflects this complexity. The Act aims to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.
It goes in length about prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women. It says: No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form.
However, the following exemptions makes the Act lifeless when it says;
Provided that nothing in this section shall apply to:
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art, or learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in
(i)any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (24 of 1958); or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be applicable.
Sheer nudity, sexual acts and homosexuality and multiple men engaged with one woman in sex are depicted on the walls of temples – especially Ajanta and Ellora which otherwise are considered immoral and unethical but Art and Astha cover this up.
Pornography in India is another issue which requires a thorough understanding of various statutes, including the Indian Penal Code, the Information Technology Act of 2000, the Indecent Representation of Women (Prohibition) Act, 1986, and the Protection of Children from Sexual Offences (POCSO) Act of 2012. While the term “pornography” remains undefined explicitly, the legal framework relies on the characterization of content as obscene, considering its potential to appeal to indecent interests or degrade individuals.
The widespread easy access to the electronic transmission system has made the issue even more complicated. Since most of the material is transmitted from the West and with the free for all kind of situation there, the issue of morality has gone to winds.
There is a dire need to resolve strong scripture-based value system which is common in all the societies and shall not succumb to human weaknesses. That should be taught in educational institutions, regulated by legislations and implemented with strong will power by practicing individuals.