C.M. Lodha, J.
1. 'Sex', 'Morality' and 'law', the traingular complex of this judgment, is an spontaneous result of the unusual protest and vehemence at the Bar of counsel of petitioner that the High Court cannot refuse to give relief to the petitioner even though he acted like a 'sex starved vulture' in a Railway station waiting room, while putting the robes of a Railway Ticket Collector on duty and, exhibited debased and reprehensible conduct, by making the lonely lady passenger his prey, for satisfying his lust and ogery of sex, by committing sexual intercourse after bolting the door from inside and putting the light off, both of room and the minimum ethics and morality, betraying the saying that 'even birds have got seasons' and 'dacoits a code of ethics'. This is one sentence genesis of this writ petition based on technical violation of the Railway Service rules for dismissal notice of the petitioner, and, the pivot of reasons of its rejection in liminie, even though the petitioner had technically a plausible case for consideration.
2. 'Law' as observed by 'Morris Cohen' is a science of social instrument, its main object being to establish socio economic justice and remove the existing imbalance in the socioeconomic structure.
3. The dynamics of law has never been more eloquently described then by the Brinadaranyako Parishad. 'Law' says the Upnishad is the 'King of Kings, for more powerful and rigid than they. Nothing can be migther than law, by whose aid as by that of the highest monarch, even the weak may prevail over the strong.
4. Yajnyavalkya who came much after Manu divides Dharam Shastra into Achara or ritual, Vyavahara or jurisprudence and Prayaschitta or expitation.
5. In the Vedic period between 4000 to 1000 B.C. Srautasutras between 800 B.C., to 400 B.C. Dharamsatras between 600 B.C., to 300 B.C. Arthasastra of Kautilya between 300 B.C., to 100 A.D., Manu's concept of law between 200 B.C. to 100 A.D. Yajnvavalkya between 100 A.D.' to 300 A-D., Katyayanasmriti between 400 to 1500 A.D., Jimutvahan between 1100 to 1150 A.D, Nandapandita between 1590 to 1630 AD., Nirnayasindhu between 1610 to 1640 A.D Vyavaharamayukha between 1615 to 1645 and Dharamsindhu between 1790 A.D., all have got a common Golden thread of laws, having been made, interpreted or, enunicated undar the various inames at.d branches of 'Dharma', being based, on, bedrock and foundation of 'Morality'.
6. In the above ancient back ground of concept of law, the Court has to now consider its legal duty in the administration of Justice under the present Constitution and the various legislations and the codified law.
7. Are we to convert temples' of justice into high pertechnical legal gymanastic clubs for display of legal gimmics to protect, immoral traffic and immoral acts? Are we to Hold that law is blind ' and be raft and devoid of Morality? Are, we to provide legal umbrella and reinstate, an, officer, who being mad with ogery and lust for sex, converts Railway waiting room into a brothel, and instead of checking Railway tickets, exploits a lonely female sex in the room by, satisfying his immoral, animal instinct
8. These are a few serious legal cum sociological questions arising from submissions of Mr. Singhvi; that since I, am sitting as a Judge in a Court of law, I should not consider the morality of the case and if I do so I would concert 'Law Court', into 'Moral Court', which I cannot do.
9. The answer is very simple. Law cannot be devoid of morality. Law is trade and enforced to ensure morality. Morality is inseparable from law and when even the contracts against public policy and morality are void, legislatures' cannot make laws against public morality. Courts of law are never immoral Courts' and would never interpret law against morality. Courts of law are proverbially 'temples of justice' and neither any temple nor justice call exist against morality, and without morality. Morality and law, though not synonymous are complimentary and supplementary brie leased on' the other and one enhancing and protecting the other. In the above broader sense the Courts cannot become blind, to morality, as should refuse to interpret law so as to put premium on, immorality. A court should refuse to administer law so as to lead to immoral, unethical consequences always interpret law for enhancing protecting morality.
10. The Upanishadic concept of law is 'Dharma'. It is not Dharma in the sense of performance of rituals, Dharma in the sense of 'rule of law' which sustains i.e., Dharma or law which sustains social structure and endure spiritual progress. Champa or law, 'which holds society' together, makes it compact.
11. There area several schools of jurisprudence. Analytical school of law, where ho sociogical considerations came into being The historic concept of law, which considered that law is not made but originates as a historical growth on 'Sadachar' usage and customs. Yet another school says that the law is the result of a social effort to meet the unsatisfied legitimate; but human desires and ambitions The law thus becomes an instrument of social and economic change.
12. The ethical schools of law believes that law should be, based on Morality, consideration of rights and wrong, moral or immoral.
13. 'Morality' is certainly a relative concept and may change from country to country and period to period The theory of relativity certainly applies for morality from the Stone Age to the present advanced age of ultra-modern science and technology, with serious impact of western culture.
14. Morality concepts have undergone radical changes. The TskudkUrokn and/or Loknokn of the Jain philosophy also proves theory of relativity. It is best illustrated by the officiated story of how different blind people coining into contact with different parts of body of elephant described the caricature of an 'Elephant.'
15. The Indian laws, belong to which school of law, is a question which would require tremendous study & research, to answer. Again that answer can be given better by Professor of Law, Research scholars or eminent Jurists only & not by a humble Judge while deciding a short point in this case. But this much can certainly be said that our legislatures have not yet started thinking ?of making or enacting laws against morality nor any such sociological or economic needs have been felt to abandon the 'ethical' schools of law completely.
16. 'Law and Morality' has been dealt with by RWM DIAS in his treatise on jurisprudence published by Butterworths at page 342:
Law and morality : The question to be decided is whether certain liberties should be allowed at all i.e., the extent to which prohibitory laws should be used to uphold moral positions A preliminary point to clarify is the significance of the word 'should' No one denies that many laws do reflect moral considerations, while many are morally neutral. The question is not whether they do or do not, but whether they should uphold morals, i.e., the justification for using laws in this way. Justification is said to be needed because (i) the imposition and enforcement of legal duties limit liberty of action; any interference with libterty is said to need justification since 'liberty is ancient; it is despotism that is new.' (ii) A good deal of the legal reinforcement of morals involved interference with sexual freedom; and the psychological problems that can arise through the inhibition of such deep seated drives demand that sufficient reasons be given, (iii) The freezing of moral attitudes by laws may hinder the processes of moral change; so hindrance needs justification.
Morality has hitherto been largely bound up with religion, and it is said that once a State leaves religion to private judgment it should do likewise with morality. There is however, a distinction. Moral ideas of right and wrong dictate behaviours, but relig on is a matter of belief and only influences behaviour through the moral attitudes which it fosters. Many ideas about every day morals are not peculiar to any particular religion, or any religion at all. Since the State is very much concerned with the behaviour of its citizens, it may rightly continue to concern itself with moral attitudes while renouncing interest in beliefs, except when these are thought to be conducive to undesirable behaviour e. g, Scientology.' At page 144
'The interpretation of 'moral position' falls to be considered next. This is, of course, central to the problem of how far laws should uphold morality. Two persons may debate whether the rule of law should allow or forbid the doing of something which both acknowledge to be immoral. What of the man who asks, on what basis is it judged immoral? Answers based on religion cannot appea to non-believers and so fall outside the scope of this chapter. A secular answer given by Professor Hart is that 'some shared morality is essential to the existence of any society.' 'Essential' has two aspects. On the one hand, it means that some shared morality is an ingredient of any and every community, i.e., a part of every community is its morality. On the other hand, it may also connote certain additional moral ideas which have become part of the fabric of a particular society. This distinction provides the respective bases for what might be termed the 'institutional' and the 'utilitarian' interpretations of 'moral position.'
17. In 'Salmond on Jurisprudence' twelfth edition 'Morality and law' has been discussed under the head 'LAW AS THE DICTATE OF REASON : NATURAL LAW' at page 17 Morality and law has been dealt with in the following manner:
The idea of natural law, however, raises formidable difficulties. These centre round the problem whether moral propositions can be derived from propositions of factj whether an 'ought' can be deduced from an 'is'. The value of being able to make such a derivation is that factual propositions can be established as true and are therefore less open to disagreement than moral prepositions. Men may disagree about whether euthanasia is justifiable, but not for example about whether arsenic is poisonous. Accordingly, if moral propositions could be deduced from factual propositions, we could establish moral truths commanding general agreement. 'The difficulty is that the inference of a moral proposition from a factual statement is not apparently one of strict logical necessity (a). In a strict logical interference it is impossible to affirm the premise & deny or even question the conclusion. For example it is impossible to affirm the premise and deny or even question the conclusion. For example it is impossible to affirm that an object is red and at the same time deny that it is coloured without arriving at a self-contradiction, because the notion on being red includes, as it were, the notion of being coloured. By contrast, what ever factual, proposition is used as the premise for an ethical conclusion, the premise can be affirmed & the conclusion denied without producing a self contradiction. Take for example this argument : if anyone shows you kindness, you ought to repay him with kindness'. Here the conclusion seems to follow naturally enough from the premise, but we can affirm the latter and deny the former without illogicality : 'Smith has always shown me kindness but I am not morally obliged to repay him with kindness' may strike us as odd but hardly self contradictory. Further examination, however, of the problem of bridging the gap between factual and moral propositions is outside the scope of the present discussion, which is confined to the way in which natural law theory seeks to bridge this gap.
18. In JOHN RAWLS treatise on A THEORY OF JUSTICE' published by the Oxford University Press, 1976 Edition 'Morality in law' has been dealt with in the following manner At page 472:
Someone attaining to the more complex forms of the morality of association, as expressed say by the ideal of equal citizen, has an understanding certainly of the principles of justice. He has also developed an attachment to many particular individuals and communities, and he is disposed to follow the moral standards that apply to him in his various positions and which are upheld by social approval and disapproval. Having become affiliated with; others and aspiring to live up to these ethical conceptions, he is concerned, to win acceptance for his conduct and aims. It would seen that while the individual understands the principles of justice, his motive for complying with them, for some time at least, springs largely from his ties of friendship and fellow feeling for ethers, and his concern for the approbation of the wider society. I should new like to consider the process whereby a person becomes attached, to these highest cider principles themselves, so that just as during the earlier phase of the morality of association he may, writ to be a good sport say, he now wishes to be a just person. The, conception, of acting justly and of advancing just and institutions comes to have for him an attraction analogous to that possessed before by subordinate ideals.
In conjecturing how this morality of principles might come about (principles here meaning first principles such as those considered in the original position), we should note that the morality of association quite naturally leads up to a knowledge of the stand* ards of justice. In a well ordered society any away not only do those standards define the public conception of justice, but citizen who take an interest in political affairs, and those holding legislative and, judicial and other similar offices, are constantly required to apply and to interpret them. They often have to take up the point of view of others, not simply with the aim of working out that they with want and probably, do but for the purpose of striking a reasonable balance, between competing claims and for adjusting the various subordinate ideals of the morality of association.
19. I have extracted above a few of the different views of the jurists on the question of morality in law only to strengthen my view mentioned above, that this subject is so wide vast and vivid that it would be highly unwise and unexpedient for me to make an attempt to decide it in this case. That being so, whatever I have stated above in respect of 'morality and law' should be treated only as an indication of an introduction on the subject only and not a discussion decision or a judgment on this subject of 'morality and law'.
20. Let me now narrate the bare skeleton, facts necessary to understand the above preface, and for, the decision of rejection of this writ petition.
21. The judgment dated 21-3-1977 given by the Additional District & Sessions Judge, Kota which has become final, mentioned that the petitioner a Railway ticket Collector on-duty induced, for sexual intercourse a lady passenger in the Railway waiting room for lady passengers, while he was on duty. While condemning this conduct of the petitioner, the Court has said as follows:
ijUrq fu.kZ; lekfIr ls iwoZ fy[kuk mfpr le>rs gS fd vfHk;qDr jsyos deZpkjh gS vkSj ,sls d`R; fyIr jgk gS tks v'kksHkuh; ,oa vekuoh; gS vkSj lkFk gh fuanuh; Hkh gS A
22. These structures were passed while acquitting the accused for the offence Under Section 376 IPC, because the lady was major and it was not proved that sexual intercourse was committed without consent. On the contrary the finding was that the lady on account of monetary temptations have been changing her statements, from time to time & the finding was that on account of giving greed for money, she had submitted herself to sexual intercourse by the accused in the ladies waiting room in the night.
23. This writ petition has been filed against notice which was issued to show cause why he should not be dismissed from service and Mr. Singhvi's contention is that since he was not convicted, the provisions of Rule 14(1) of the Railway Servants (Disciplinary and Appeal) Rules, 1968 cannot be applied. It has also been argued that after filing of the writ application, the Railway has hastened to dismiss him from service before the matter was adjudicated by this Court.
24. The contention of Mr. Singhvi so Far as applicability of Rule 14 is concerned, may be plausible and may require consideration in the proper forum of a suit or an appeal, if filed from the order of dismissal.
25. How ever, so far as Article 226 of the Constitution is concerned, undoubtedly and undisputedly jurisdiction is 'equitable and extra ordinary' & the reprehensible conduct of the petitioner, who was a Ticket Collector and who was supposed to check the tickets being on duty; of the passengers at the Railway Station, in abusing and misusing his official position and stooping down to the extent of converting retiring room of the Railway in a place of satisfying his sexual lust & acting like a 'sex hungry vulture' debars him from seeking equitable relief before this Court. I am of the opinion that this Court can certainly refuse to interfere in matters where the facts of the writ petition itself show that the conduct of the petitioner in relation to the facts of the case was reprehensible and debased To allow such persons to invoke Article 226 would be doing greatest disservice to the sacred object of the founding fathers of the Constitution for enacting Article 226 of the Constitution for providing equitable relief.
26. Before parting with this judgment, let me extract below, a few classical words of inspriration provided by Hon'ble the Chief Justice Gajendra Gadkar. In his speech on the subject, 'Law, Lawyers & Judges' in an inaugral address of centenary celebrations of the Advocates Association of Western India, at Bombay on October 12, 1963, while advocating for ethical school of law, his Lordship said, 'Every day before the proceedings commence when Judges and Lawyers bow before that seat of Justice, it is necessary that each one of us should remember that we discharge in the Court room it the sole on task of search of truth. Ethical considerations of the highest order cannot be eliminated from our courts, for in a sense, that work is the work of worship in the temples of justice.'
27. The writ application, therefore, deserves to be dismissed and is accordingly dismissed in limine.