SCHOOL OF LAW

Jurisprudence-II
ASSIGNMENT

Law and Social Change

Submitted to: Submitted by:

Mrs. Anandita Joshi (Raman Gupta)
Faculty of Law Roll No. IUU15BAL024
Jurisprudence-II B.A.LL.B.
IMS Unison University Semester -VIII

IMS Unison University

INTRODUCTION

The history of mankind reveals that human wisdom has devised different methods and
means to meet the structural changes in the social system which take place with the
advancement of knowledge, culture and civilization. Law has always been considered as
one of the important instruments of affecting social change. In the modern era, there has
been widespread concern of law as a tool for bringing about homogeneity in the
heterogeneous population having socio-cultural diversities. Though there are several
devices to bring about a change and reformation in society, but reformation through law
is perhaps one of the most effective and safest methods to achieve this end.

At this point of time, it becomes essential to understand what is meant by social change.
It has been defined as any non-repetitive alteration in the established modes of behaviour
in society. Social change is held to occur only when social structure – patterns of social
relations, established social norms and social roles – changes. Thus, a change in the
established pattern of social relations between racial or ethnic groups in a society would
constitute social change, but a general increase or decrease in the amount of economic
wealth in a society would not.

In our quest to discover the effect of law on social change, we generally tend to ignore
the reverse, i.e., the effect of social change on law. That legal change reflects wider social
change often seems too obvious to require discussion. For example, technological change
is one important direct cause of legal change: the development of the internal combustion
engine, the motor car and later of air transport produced vast areas of new or reshaped
legal doctrine to regulate these new features of life with their attendant possibilities, risks
and dangers. In addition, law can adapt to change in ways that may not be readily
apparent on the face of legal doctrine. Legal concepts can remain in the same form while
fundamentally changing their social functions. Law can adapt to changed social
circumstances without necessarily changing its form or structure.
THE INDIAN PERSPECTIVE

In this part, we shall be going through the effects of British rule, provisions of the Indian
Constitution and also some decisions of the Indian Judiciary, thus, studying the relation
between law and social change with respect to the Indian scenario.

Effects of British Rule

In India, as the legal and administrative system imposed by the British began to
exercise an influence on social affairs and took over the working of crucial aspects of
the political economy, legal scholarship was self-protectively encapsulated in a ‘black
letter law’ tradition. This tradition seeks to interpret law as a distinct, relatively
autonomous reality. Within this tradition, ‘law’ is separated from morality.
Although many lawyers and judges were prominent in the national movement, this
tradition in India survived virtually unscathed during the troublesome years that led to
India’s independence. The advent of Gandhi did not alter the centrality of this
tradition. While the law and administration were criticized, the central thrust of the
movement was to achieve legal and constitutional change. Ultimately, the aims and
objectives of the national movement were narrow legal ones.
After independence, a new comparative literature was developed which mechanically
cross-referenced English, American, and Australian citations for analogous provisions
in the Indian Constitution. While Indian law was caught in its ‘craze for foreign
things’, it was also being manipulated by the more advantaged sections. Dressed in
Western garments, Indian public and private law served emerging interests with an
untidy integrity.

Mature versions of the ‘black letter law’ tradition were kept alive by contacts with
English jurisprudence and English legal education. The impetus for renewed Indian
scholarship in law came from exchange programmes with the United States.
Mainstream scholarship in Indian law continues to espouse the narrow tradition. The
approach that constitutional interpretation should limit itself to the consideration of
doctrines, has received support from judges, lawyers, academics, and, above all, the
Law Commission. But given the social rhetoric of the Constitution, government
planning and the increasing differential between the rich and the poor, there is a
considerable amount of pressure to break out of the tradition to ask a new range of
questions about the task and purposes of Indian law.

The Constitution of India

The provisions in Part III of the Constitution are declared as fundamental rights of
citizens against which the State has no power to legislate in a manner not permissible in
the Constitution itself. This charter of rights forms part of what is called the “Basic
Structure” of our Constitutional scheme in so far as it is considered essential for
individual happiness and personality development according to his own chosen path.

The Constitution makers were not oblivious of the then prevailing iniquitous social
structure and the need to consciously change it towards an egalitarian model. They did
not rest content by outlining the ends. The means were also conceived which included the
containment of State power division at different levels, assignment of a certain measure
of autonomy to the will of individual citizens free from State interference and enactment
of number of guidelines to be followed by the State in the governance of the country.
These guidelines which form the strategies for social justice are to be found in Part IV
under the rubric of Directive Principles of State Policy.

Articles 38 and 39 (b) and (c) on the one hand, and, Articles 14 to 17, on the other, are
the provisions directed against the various serious manifestations of poverty. Various
directive principle enshrined in Part IV of the Constitution commanded the state to adopt
affirmative action programmes through legislation or executive action directed towards
the elimination of existing socio-economic inequalities. The Constitution has itself abolished
“untouchability” (Article 17) in all forms and prohibited “forced labour”
(Article 23) and similar forms of exploitation.

The Indian Constitution makers attempted to strike a balance between the claims of the
individual freedom and social justice by incorporating the former in Part III, and the latter
in Part IV. It has been aptly observed that these two parts of the Constitution, together,
commits the country to the goal of “social revolution” and that they, together, form the
“Conscience of the Constitution”.

Judicial Decisions in India

In the modern welfare era, the legal systems intend to operate as purposeful enterprises of
achieving social justice. The conception of social justice provides for an efficient social
arrangement through which good things of the society, amenities and responsibilities are
justly distributed among the members of the society. It ensures a social scheme of equal
access to economic opportunities and social conditions in various sectors of the society.
In its essence, social justice means the quality of being fair and just in social relations of
human beings.

In the light of social transformation, we will now go through a few important decisions of
the Indian Courts in relation to some important issues.

 Protective Discrimination

In State of Madras v. Champakam Dorairajan, striking down the Governmental order

providing for community wise reservation of seats in educational institutions, the
Supreme Court regarded that apart from Article 16(4), there is no provision
authorizing reservation or any kind of preferential treatment.
The decision necessitated incorporation of Article 15(4) which authorizes the State to
make special provisions for the advancement of socially and educationally backward
classes of people.

The Supreme Court in MR Balaji v. State of Mysore and subsequent cases rightly
considered that special provisions under Article 15(4) includes reservation as well,
and fixed the maximum percentage of reserved seats per year at 50%.
 Right to Life and Liberty
In Maneka Gandhi v. Union of India, it was said that all attributes that make up
personality of individual constitute personal liberty, whose deprival can be made only
by a procedure just, fair and reasonable.
Right to legal aid (Khatri v. State of Bihar), right to speedy trial (Hussainara v. State
of Bihar), right to fair prison conditions (Sunil Batra v. Delhi Administration), rights
of women (Upendra Baxi v. State of UP) and children (Sheela Barse v. State of
Maharashtra) in custodial detention, right to procedural safeguards in the trans-nation
adoption of children (Lakshmikant Pandey v. Union of India), right to better hospital
facilities for mentally handicapped (Veena Sethi v. State of Bihar) are some of the
newly explored rights under Article 21 which assuaged the injustices suffered by the
socially handicapped classes.

 Public Interest Litigation

Until very recently, it was an avowed practice of the courts, to redress grievances
only if the affected parties themselves seek redressal through appropriate proceedings
(JM Desai v. Roshan Kumar). But with the evolution of the concept of Public Interest
Litigation in the case of Mumbai Kaamgaar Sabha v. Abdul Bhai, the situation
changed, and subsequently, the approach was whenever there is a public wrong or
public injury caused by an act or omission of the State or a public authority which is
contrary to the Constitution or the law, any member of the public acting bonafide and
having sufficient interest can maintain an action for redressal of such public wrong or
public injury.

Now there was involvement of social activists, journalists, associations of public

spirited men in championing the cause of low visible areas of the society.
Unreasonable handcuffing (Sunil Batra v. Delhi Administration), immoral trafficking
of women in protective houses and prisons (Upendra Baxi v. State of UP) , supply of women and
juvenile criminals for immoral purposes, detention even after final
acquittal because of communication gap or negligence of the administration (Rudal
Shah v. State of Bihar), have been considered as deserving circumstances for quick
and effective remedy free from cumbersome procedures

CONCLUSION

Our quest to understand the interplay between law and social change has been an exhaustive
journey, with halts at significant junctures. These junctures have been the various schools of
law and also the Indian scenario. At these halts, we have come across a wide range of ideas
with respect to the interplay.

In the Natural Law School, we went through the ideas of Plato, Aristotle, Aquinas, Hobbes
and Locke. All of them were more or less of the view that law has a divine origin. They
advocated for the formation of associations in order to promote welfare of the society. They
also discouraged any interference with the law of the nature.
In the Positive Law School, we went through the ideas of Bentham, Austin and Holland. All
of them more or less believed in the supremacy of the sovereign or politically superior for the
purpose of promoting happiness in the society. This school also distinguished between law
and morals.

In the Historical School, we went through the ideas of Savigny, Puchta, Maine and
Vinogradoff. They considered law in direct relationship to the life of the community. They
believed in the gradual evolution of law, much like language, and a result of the general
consciousness of the people.

In the Sociological School, we went through the ideas of Compte, Ihring, Ehrlich, Duguit and
Pound. They believed in maintaining a balance between State, social welfare and individual
interests. They always held society’s interests superior to those of the individual and laid
down the State’s function as promoting social welfare.

In the Realist School, we went through the ideas of Holmes, Cardozo, Frank and Arnold.
They looked at the Courts as the discoverer and protector of law. They believed in the
intellect and experience of Judges for finding, declaring, interpreting and preserving the law.

Then we arrived at the Indian perspective. Here, we first looked at the effects of the British
rule on the Indian legal system, by studying the ‘black letter law’ tradition.
Then we looked into the provisions of the Indian Constitution. Here we saw that Part III of
the Constitution, containing fundamental rights, and Part IV, containing the directive
principles of state policy, consist of the provisions that promote individual freedom and
social justice.

We also went through some significant decisions of the Indian Courts relating to socially
relevant issues, such as, reservation, life and liberty, and public wrong or public injury. We
saw that how the view of the Indian judiciary has been changing, in order to promote social
welfare and justice.

Coming to the end of the journey, we have seen that both law and society have tremendous
impact on each other. Sometimes it is the law that affects the society, while on other
occasions, it is vice-versa. But ultimately, it is the interplay between law and social change,
that is resulting in bringing about social transformation.

It is a fact that the tendency of the society is to look for stability and certainty, as the society
is conversant with the existing practices. They would be sure that the law of yesterday would
still be the law of tomorrow. But stability and certainty alone, however, are not sufficient to
provide us with an effective, vital system of law. Progress also has a justified claim upon the
law. In the contemporary scenario, law needs to play a proactive role in bringing about social
change.