Mohit Sharma (Director Sankalp IAS Academy, Ethics Faculty UPSC)

Best Ethics Notes UPSC

Source

The content in this section is adapted from the book Ethics for UPSC and UPPCS by Mohit Sharma. Mohit Sharma is the Founder and Director of Sankalp IAS Academy, Amroha, Uttar Pradesh. He has been guiding civil services aspirants for the last 12 years. He has the honour of guiding many selected candidates. Mohit Sharma is also the founder of Self Study Wala, eMock Test and eMT Education.

Ethics vs Law UPSC

Law and ethics both guide behavior, but they do so in different ways and have different origins and consequences.

Law refers to the system of rules that are created and enforced by the governing/sovereign authority of the land, such as the government or the court system to achieve common good. State has the sovereign powers to enforce law despite resistance.

Laws are intended to maintain order, protect individuals and property, provide services, and promote the general welfare. If you violate a law, you can be penalized, often through fines, imprisonment, or other legal sanctions. Laws can be statutory (created by legislatures), common (derived from court decisions), or regulatory (created by executive agencies).

Similarities:

• Both aim to regulate conduct and ensure orderly society by provide guidelines on acceptable behavior
• Both promote social good and well-being- encourage good actions and discourage harmful action
• Both can address similar issues like theft, violence, and discrimination.
• Guidance of moral behaviours
• Both offer a framework for decision-making.
• Both are source of attitudinal change

Differences:

Interrelationship Between Ethics and Law:

• Both Influence each other-
• Ethical principles often influence the creation of laws – Dowry prohibition, Decriminalisation of Homosexuality 
• Laws can help to shape and solidify ethical norms within a society, makes them enforceable – Civil rights protection act, 1955

• Both complementary each other-
• Ethics guide decision-making when law is silent (e.g., conflicts of interest)
• Law has moral obligation – Thomas Hobbes, as law making authority (state) is the result of social contract theory
• Laws enforce constitutional morality.

Conflict Between Ethics and Law:

• When Legal Reforms lag behind societal changes and ethical advancements
  • Privacy
• Diversity and Cultural Differences
  • UCC
• Rigid Legal Frameworks, offered no exceptions for complex cases like Savita Halappanavar Death case of Ireland
• Religious Influence on law like Catholic background of Ireland likely influenced the restrictive abortion law.
• Corporate and Economic Interests, crony capitalism
• Populism
  • Government changes the SC verdict in shah bano case
• Moral Pluralism, Diverse moral perspectives within a society
• More focus on letter of the law rather following both letter and spirit of the law
• Complexity of Law
  • Show me the man I will show you the rule.
  • Sticking to the complexity and letter, rather than the letter and spirit of the law, fosters a cynical and manipulative approach to law enforcement.
• Corruption

Solutions:

• Follow the law in letter and spirit
  • Deeper understanding of Constitution morality help to understand the spirit of law
  • SC – Procedure established by law > Due processes of law
  • Breaking the spirit of law is just like hiding behind the law, run away from duty and it is the case of mental harassment because it is invisible
• Judicial review law in conflict
• Updating Laws by legislature
• Legal Flexibility
  • Use discretionary power in the light of constitution morality
• Social reforms to increase the social acceptance of law
• Strengthen institutions
• Provide legal awareness for public
• Increase Stakeholder Engagement and civil society participation in making and implementation of law  

Example where actions are ethical but not legal

• Give benefits of government scheme to needy without proper documentation
• Civil Disobedience for Civil Rights
• Breaking Curfews to Help Others
• Feeding the Homeless in Restricted Areas
• Hacking to Expose Security Flaws
  • Ethical hacking

Example where actions are legal (not illegal) but not ethical

(i.e., Right to do but not right thing to do)

• Denying abortion due to ethical standards of society, Savita Halappanavar Death case of Ireland
• Tax avoidance by a company to maximize shareholder value
• Marital Rape
• Misuse of Money bill, President rule, ordinance making power, emergency provision etc.
• House demolition due to minor legal violation of housing norms
• Selective and Revengeful application of law
• Delay treatment of person injured in accident due to proper police case filing
• Protection of client by Lawyers which they considered guilty, as show in criminal justice movie

Guidance for Public Administration:

• Public servant must balance their legal obligations with their ethical responsibilities. Laws ensure compliance with policies and regulations, while ethics ensure actions are taken in the public interest.
• Both are considered two side of the same coins hence both should be followed together.
• Civil servants must follow both the letter and spirit of the law to avoid the conflict between law and ethics.
• Civil servants also try to increase the Legal awareness of society as-
• Effectiveness of the law ∝ Legal awareness of society
• Attitude and behaviour changes are also focused it is found that it brings far and wide changes like swatch Bharata mission

Ethical Dilemma –

Legal Rights (what you have the right to do) vs Moral Obligations (what is right to do)

Ethics is knowing the difference between what you have the right to do and what is right to do. (UPSC 2022)

This quotes emphasis that the scope of ethics is far greater than the legal obligation. Legally, you may have the right to do something, but ethically, it may not be the right thing to do.

Legal Rights (Right to do): These are the actions that are permitted by law. They define what you are legally allowed to do without facing legal consequences. Just because something is legal doesn’t necessarily mean it’s morally right.

Moral Obligations (Right things to do): These are actions that are considered ethically correct or virtuous, even if they are not required by law.

• Moral Obligations Beyond the Law: Ethical considerations can sometimes push you to act beyond the law. The Good Samaritan principle encourages people to voluntarily offer assistance to those in distress, even if there’s no legal obligation to do so.
• Moral Obligations Against the Law: Ethical person will not be indifferent to social problems and protest against unjust laws, and support the poor and helpless victims against powerful people.

Can civil servant go beyond the law while doing good things

In doing a good thing, everything is permitted which is not prohibited expressly or by clear implication. Examine.

Positive Implications:

• May increase welfare of society
• Provide more flexibility to take Initiative – DM visits a government school and eats the mid-day meals cooked for children
• Encourages innovative solutions to public issues
• Increase Responsiveness of public servants which allowed to respond dynamically to emerging needs and crisis of society

Negative Implications:

• Faild in Judicial scrutiny
• Actions taken without clear legal backing may lead to legal consequence, charge of favouritism   
• Actions taken in the grey areas of legality may complicate accountability and can increase the corruption in system in long term due to Ambiguity and Interpretation
• Established wrong precedents for future civil servants
• The line between what is expressly forbidden and what is allowed can be blurred, leading to ethical conflicts
• A public official implements surveillance measures to prevent crime, not covered by existing legal frameworks
• Chance of misuse by corrupt officers
• Set wrong precedent

Civil servants must find a legal route to implement ethical decisions. (Movie article 370)

They must consult with some legal advisers, seniors, find some precedents, try to use of delegative legislation and must document decisions and the rationale behind them to provide a clear account of actions taken.

Relevance of Civil disobedience in Present Times

Civil disobedience is the active, professed refusal to obey certain laws of a government without resorting to physical violence. Civil disobedience is typically nonviolent, which reduces the risk of harm and can prevent the escalation of conflicts compared to violent protests.

Martin Luther King Jr in American Civil Rights Movement, Mahatma Gandhi in Indian Independence Movement also use civil disobedience as a tool.

Civil disobedience, the act of deliberately disobeying a law to protest a perceived injustice, has both positive and negative aspects.

Positives:

• Promotes Social Change such as the Civil Rights Movement in the United States
• It raises public awareness about injustices and can shift public opinion
• Ethical as choosing nonviolent resistance
• Demonstrating a willingness to face consequences (e.g., arrest) can add legitimacy to the movement
• It empowers individuals and groups to take action against injustices
• Acts of civil disobedience can unite people with shared values and goals, strengthening the sense of community and solidarity
• Many ethical theories, such as deontology (duty-based ethics) and consequentialism (focusing on outcomes), support the idea that individuals have a moral duty to oppose unjust laws.

Negatives:

• Participants may face arrest, fines, imprisonment, or other legal consequences
• Having a criminal record can have long-term negative effects
• Civil disobedience can disrupt public order and cause inconvenience
• Actions like strikes or blockades can have economic repercussions, affecting businesses and livelihoods
• There can be a backlash from authorities or the public, leading to increased repression or stricter laws
• High Risk of Escalation of movement and become violent
• Ripple effects and habit of civil disobedience can lead to a law-and-order problem
• Authorities or media might misinterpret or misrepresent the actions and intentions of the protestors
• Pressure group used civil disobedience as a tool for improper demands
• Disobeying laws can undermine rule of law and lead to chaos.

Civil disobedience can be a powerful tool for social change, promoting justice and equality through nonviolent means. However, it carries risks and potential downsides, including legal consequences, public disruption, and the possibility of backlash.

In present times many other tools are available for the same like-

• Judicial review, use of PIL
• Pressure through social media campaign
• Appeal to government
• Peaceful protest without breaking law, Farmers protest demanding MSP a legal status etc.

Hence, Civil obedience should be used as a last resort. Government should promote civil society participation in law making and enforcing mechanism to avoid such incidence.

Doctrine of colorable legislation

The doctrine of colourable legislation gives the power to court to ensures that legislatures act within the constitutional limits and prevents legislatures from making laws they aren’t authorized to make, even if done indirectly. It prevents legislatures from exceeding their authority.

It is also known as pretextual legislation or fraud on the Constitution.

Positive points:

• It helps maintain the separation of powers hence works as a Constitutional safeguard
• Courts use it to scrutinize potentially unconstitutional laws
• It prevents legislatures from overstepping their constitutional boundaries
• Prevents abuse of power
• Promotes transparency in legislation
• Protects individual and states’ rights by limiting federal overreach

Negative points:

• Based on Subjective interpretation
• Potential for judicial activism
• Make the legislative process more complex as lawmakers try to ensure their laws won’t be struck down.
• Delaying potentially beneficial legislation and implementation
• The possibility of laws being struck down can create legal uncertainty

Quotes on Ethics and Law

Aristotle:

• “Justice is the advantage of the weaker.”
  • This suggests that laws should protect the interests of those who are less powerful, ensuring that justice serves the common good.
• “The law is not to be obeyed only in order to avoid punishment, but because it is right and good.”
  • Aristotle believed that laws should be respected and followed not out of fear of punishment, but because they are just and beneficial for society.
• “At his best, man is the noblest of all animals; separated from law and justice he is the worst.”
  • Aristotle emphasizes the importance of law and justice in cultivating the best qualities in human beings and maintaining social order.
  • Human + Law and Justice = Humane
• “The law is reason, free from passion.”
  • This quote reflects Aristotle’s belief that laws should be based on rational thought and objective reasoning rather than emotions or personal biases.

Plato:

• “Where there is no law, there is no freedom.”
  • This quote emphasizes the idea that laws are necessary to ensure freedom by providing structure and order in society.
• “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.”
  • This highlights the limitations of laws and the importance of cultivating virtue in citizens.
    • Way around (Loopholes) in dowry prohibition act, 1961, dowry is ban but gifts are allowed
  • But Law is necessary
    • to avoid bona fide mistakes
    • to provide knowledge of right and wrong
    • to provide clear demarcations of right and restrictions
  • Therefore, even if society can be considered morally good still law is needed to regulate conducts of people.
• “Laws are not made for the good man, but for the bad.”
  • Plato suggests that laws primarily exist to curb the actions of those who would otherwise act unjustly, rather than to guide the already virtuous.
• “A good decision is based on knowledge and not on numbers.”
  • This implies that laws and legal decisions should be based on wisdom and understanding rather than mere majority rule.
  • In “The Republic,” Plato argues that the ideal ruler is a philosopher-king, someone who possesses both the wisdom to understand the true forms of justice and the authority to implement them.

James Madison (Father of the Constitution):

• “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
  • This quote emphasizes the need for laws and government due to human imperfection.
  • Neither man can become angel nor god come us to rule, hence constitution is necessary.
• “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
  • Madison underscores the importance of separating powers to prevent tyranny.
• “Ambition must be made to counteract ambition.”
  • Madison explains the necessity of checks and balances within government to prevent any one branch from gaining too much power.
• “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
  • Madison warns against overly complex and inaccessible laws, emphasizing the need for clarity and understandability in legislation.

Difference Between Laws, Rules, Regulations

Laws, Rules and Regulations as a source of ethical guidance

• Formalization of Ethical Principles
  • Codification of values
  • Often Reflect ethical principles of society
• Regulating discretionary powers
  • Central Civil Services Conduct Rules, 1964
• Commanding action and inaction
  • encourage positive action and prohibit negative action
    • Prevention of Corruption Act prevents corruption
    • MG-NAREGA enables social audit
• Fostering social justice by providing modern human rights
  • Prevention of Civil Rights Act 1955 prohibits untouchability.
• Human rights protection
  • Motor Vehicle Amendment Act, 2019 provides for good Samaritans and protects them against civil or criminal actions.
• Guide ethical behavior by outlining what behavior is considered lawful or unlawful.
  • Set Minimum Standards for behavior in society.
  • Provides Baseline expectations
  • However, laws are often seen as a floor, not a ceiling, for ethical conduct.
•  

limitations of Laws, Rules and Regulations as a source of ethical guidance

• Not Always Comprehensive
  • May not cover every ethical issue or dilemma
    • Crisis of Conscience
• Often lag behind societal changes and advances in technology
  • Issues related to digital privacy, artificial intelligence, or genetic engineering
• Lack of social Acceptance
  • Might have good intentions but society might not be mature enough to accept them.
    • Opposition to Triple Talaq law, UCC
• Interpretation and Enforcement
  • Different people may interpret the same law or rule differently
• People might find loopholes in them.
• Legal but not Ethical Dilemma
• Often influenced by power structures and politics
  • Might favor interests of some over others.
• Cultural Differences
  • Impact social acceptance

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