LAW AS AN INSTRUMENT OF SOCIAL CHANGE

INTRODUCTION :

Law is framed as the standards and rules to be followed for the peaceful living of the people in the society , while social change is the alteration in the society which may have either good or bad impact in the society.For decades now law and society theorists have been preoccupied with attempts to explain the relationship between legal and social change in the context of development of legal institutions.They viewed the law both as an independent and dependent and variable(cause and effect) in society and emphasized the interdependence of the law with other social systems. Generally they put forth the question that whether every law that had been enacted has brought only the good effect and whether the protection of the country has been a great concern for the legislation. In the other words, law which is considered to be a tool of social change has led to the development of the society or not ?

In its most concrete sense, social change means large numbers of people are engaging in group activities and relationship that are different from those in which they or their parents engaged in previously. Thus, social change means modifications in the way people work. Rear a family, educate their children, govern them, and seek ultimate meaning in life. In addition to law and social change there are many other mechanisms of change, such as technology, ideology, competition, conflict, political and economic factors, and structural strains.

RELATIONSHIP BETWEEN LAW AND SOCIAL REFORM :

The term social reform is used in several subjects such as economics, politics, law, and sociology. This says that social reform  is influenced by several domains to work out. The subject of law is the most essential among aloof the above for law is a code that regulates society. Law is the supreme authority in the hands of the states to regulate what is right and what is wrong in society. Law is not only present to provide the society with a set of rules according to which a society should function but also regulations which the society is supposed to adopt in its own way in order to ensure welfare to the people living there.

Traditionally, the norms that were followed by society to regulate itself in order to infuse the elements of uniformity, consistency, development in society. The norms that were accepted by society took the shape of the law. The people of society had to follow the norms in their everyday life and contravention of which would amount to offence either criminal or civil in nature. The same pattern is being followed at present as well. The only difference that has been brought about is the amendments in the existing laws in order to renovate society for a better look. The relationship between law and society is therefore old and requires nurture and care in order to keep it lively and fresh.

Several researchers have opinionated that law is the best instrument for regulating social reform but at times it is the social reform that becomes a statute itself. Social transformation takes place due to the presence of several factors in the surrounding. These are the demographic structure, technological upliftment, change in the ideologies of the people in society, increase in the welfare of the people in society and so on. It was an American Judge named Benjamin Cardozo who said that law should not be viewed as a definite instrument trying to bring in social reform but as a  flexible instrument of a necessity to bring in the welfare of the society. This is the essence of the Indian Constitution as well. The forefathers of the Constitution were clear with the fact that India after receiving independence should not be subjected to the similar kind of humiliation in any form as it has been for several years before 1947. The Indian Constitution can, therefore, be one of the citing examples to showcase how law can be used to bring in social change . Law is a very dynamic subject, and that helps it to take the shape of its surrounding. A society can, therefore, benefit from this subject in a lot of many ways.

THEORIES INVOLVED IN SOCIAL CHANGE :

There are two theories depending on which social change can take place. They are provided hereunder:

Linear theory of social change- This theory of social change states that improvement and advancement in society take place as society moves to a higher civilization gradually. Therefore with the transformation of the people in society, society transforms itself.

Cyclic theory of social change- This theory of social change states that the changes that take place in a society is in a cyclic form and therefore happens again and again. Therefore this theory terms social change to be continuous in nature without any period of consistency.

The theories of social change cannot bring in the transformation in the society, therefore, needs the help of law. What law does is it helps bring these theories to go through procedures so that they can be implemented. Thus without legal regulations, social movements cannot be carried out.

REASONS ATTRIBUTED FOR SOCIAL TRANSFORMATION :

Social transformation occurs due to several factors such as changes in technology, demography and ideology, changes in political life and economic policy and in legal principles or institutions.

American Judge Benjamin Cordozo said that the “Final cause of law is the welfare of society”. Law should not be denite but must be transformable according to the requirement and necessity of the society. The law cannot remain immutable. The researcher is of the view that in a changing society law should march in tune with the changed ideas and ideologies. Social life has undergone changes because of communication revolution. Hence to keep in pace with the technological development,Law has to be competent for detection of various crimes and prevention of the same also. New acts like Information Technology Act has been brought, rules of evidence has been amended to recognize electronic transaction. Methods of providing remedies have undergone tremendous change with the growth of electronic commerce, cyber crime and internet. Articial insemination, test tube babies, surrogate motherhood and cloning, prenatal detection technique and abortion have challenged the values of family life. Apart from these, law plays a pivotal role in protecting the environment. The technological growth has created great pressure on the degradation of environment. As a consequence of this the legal system had to alter its legal strategies and introduce new principles, doctrines, mechanisms etc to protect the environment, human habitation and the civic life. Technology is a blessing and curse, to which law and society have to respond aptly. Apart from society and environment transformation also happens in the economics sector, culture religion morality social outlook and very many areas. Here again law weaves its way through economic life creating possibilities for economic development and placing constraints on the form of development through very many statutes, Ex:Intellectual Property Rights.

Interaction between law and social transformation –

The researcher is of the opinion that law is the most effective instrument of social change but at times social changes becomes law. In India there are two main institutions which makes change in law, namely the legislature where new laws are enacted or amendments are done to the old acts to suit the need of the hour. The second institution is our judiciary, where interpretation of the rule of land and law of land coexist.

Foresight of framers of Indian constitution –

Law should not be denite but must transform according to the requirement and necessity of the society arising out of passing of time. It is this foresight in mind father and main architect of the Indian Constitution Dr.Bhima Rao Ambedkar inserted Art 368 to the constitution which provides that “Any part of the constitution may be amended by adopting appropriate procedure except destroying the basic structure of the constitution”. It reects the acceptance of the need of changing the law even the law of the land when situation warrants.

Necessity of changing the law –

Indian judiciary has generally been found to be alive to the needs of social thinking. The courts have brought and their fresh implications and added new dimensions to the law. As rightly quoted by Justice P N Bhagawati “It is the judge who infuses life blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society”. To show the instrumentality of law on social change, it is necessary to study some special changes that have taken place in India, because nothing is permanent but change is permanent.

Abolition of slavery and bonded labour system –

To remove slavery from India in 1843, Indian Slavery Act was passed and it further declared it as an offence by sections 370, 371 of the Indian Penal Code 1860. Art 23 of the constitution of India protects trafcking of human being and forced labour as a part of fundamental rights. Though many attempts had been taken to curb the issue of bonded labour it could be effectively done only through the Act.

Abolition of Sati System –

Sati’ – meaning burning or burying live of widow along with the corpse of her husband. It was considered to be a great honor among Hindus to become a sati since ancient times. In 1812 Raja Ram Mohan Roy the Indian social reformer started against these practices. The practice could not be stopped by the society as it was considered as part of their customs and traditions.It was law which could control it on 4th Dec 1829. The practice was formally banned in Bengal presidency lands by governor lord William Bentick by a regulation for declaring the practice of sati or of burning or burying hindu widows as illegal and punishable by the criminal courts. In post independent India – sati was not curbed effectively. Legislature took serious steps by introducing a special law for the treatment of persons who abet sati and made it exemplary punishable upto death sentence under Commission of Sati Act, 1987. Now in most areas of India it is a forgotten system. These laws relating to sati, widow remarriage, child marriage were enacted due to public opinion.The laws made during colonial administration was out of ambit of sociological jurisprudence. They were interested in these legislations only due to various social reformers and public opinion.

Widows Remarriage –

The Hindu society prevented remarriage of widows in order to protect their family’s honour and property. It was the efforts of Ishwar Chandra vidyasagar who urged British to pass a legislation allowing Hindu women to remarry. In pursuance of this The Hindu Widow Remarriage Act was passed in 1856. Legalising the remarriage of Hindu widows and to provide legal safeguards against loss of certain forms of inheritance for remarrying a Hindu widow. Thus it empowered a Hindu widow to live a life.

Prohibition of Child Marriage –

This practice of child marriage was vehemently seen in Indian society across various religious communities. Tough attempts were made by many reformers it turned futile until a law was enacted. The Hindu Child Marriage Restraint Act was substituted by the prohibition of Child Marriage Act 2006. It introduced child marriage prohibition ofcer and extended the power of family court to decide the matter under the Act. The act also enhanced the punishment upto two years rigorous imprisonment or with ne up to Rs 2 lakhs or with both

Elimination of Child Labour –

Preventing a child from enjoying his childhood is a grave crime.The Factories Act 1881 was the rst one of its kind to prohibit employment of child below the age of 7years and working hours were limited. Very many legislations were made and finally we have Child Labour (Prohibition and Regulation) Act 1986 which generalizes the age of child upto 14 years for the purpose of prohibition of child labour.

Right to free and compulsory education –

In 1992 the honorable Supreme Court declared the right to free and compulsory education as a fundamental right in the ambit of ‘Right to Life’ under Art 21 of the constitution. In 2002 the constitution was amended by inserting Article 21A to implement the right to free and compulsory education of every child aged between 6 – 14 years and inserted fundamental duties of parent and guardian. In 2010 The Right of Children to Free and Compulsory Education Act 2009 was put in force with effect from 1st April to provide free and compulsory education from 1to 8th standard to every child. Thus it can be seen that law protects the life of the children.

Public Interest Litigation –

The Honorable Supreme Court has adopted the broader approach of the rule of locus standi to utilize the initiative and deal the public spirited persons to move the courts to act for the general or group interest even though they may not be directly injured in their rights. The most important fact regarding PIL is that of relaxing the locus standi concept, any public spirited person can approach the constitutional courts and could bring to the courts notice of blatant violations of Fundamental Rights of people who are not capable of being approaching the courts themselves. PIL is a concept aimed at increasing the accessibility to justice and forms a part of constitutional jurisprudence in India.

Right to Information – For Effective Governance –

It is best and landmark instruments of law regarding social change which started in 1975, when the honorable Supreme Court upheld that freedom of speech and expression includes the right to know every public act done in a public way by their public functionaries. Right to know is implicit in right of free speech and expression and disclosure of information regarding functioning of the government must be the rule. The Right to Information Act of 2005 has proved to be a strong legislation with good teeth because of effective implementation of the Act.

Female Infanticide –

A study on the implementation of the Infanticide Act demonstrates that this particular legislation was a purposive legislation which has positive and negative sanctions, along with effective administrative mechanism, which led to substantial decrease in female infanticide practice. This could very well being understood as use of law as an instrument of social control.

The Supreme Court has also played a pivotal role as an institution of social change by the liberal and proactive interpretation of the constitutional provisions. From the sociological jurisprudence Supreme Court of India has played an important role in the social transformation with providing access to justice being made available to the masses. To conclude the researcher is of the opinion that it is only through the instrument of law the social changes can be effectively brought out and implemented thus empowering the masses.

WAYS IN WHICH LAW CAN BE USED AS AN INSTRUMENT FOR CREATING SOCIAL CHANGE :

Law as an instrument for creating social change  can be used in two broad ways namely:

  1. The laws bringing in a change in society
  2. The society is bringing in a change in the law

When one says that laws are bringing in a change in the society he or she means that law is making the society follow it in order to bring in a difference or a change in the atmosphere that is already in existence. For example, untouchability has been a long drawn social issue. Article 17 of the Constitution of India declares that untouchability should be prohibited. Therefore the law in a way brought in a social change by abolishing the social issue to a great extent. Now if anybody does practice untouchability, he or she will be held guilty of violating the law of the land. Whereas when the society brings in a change in the law it means that society is adjusting itself to law the way it wants. Sati was a practice that forced the wives to be burnt alive along with her dead husband. This custom was mandatory to be followed among the Hindus. The society brought in reforms to abolish this practice. Therefore in a way the society brought in a change in the existing law.

Law the ideal weapon for creating social change –

There have been several social aspects that law has concerned and tried to bring a change in. Justice PN Bhagwati had once said that the responsibility of providing life and infusing blood into a structure of legislation to create a living element that can meet the needs of the society lies on the judges. Law as a subject cannot by itself regulate or bring about social change without the help of the lawmakers. Therefore a way by which law can be used as an instrument for creating social change is by the judges who are the holders of law. The world as a whole has been facing certain social hurdles that have been a drawback for the developments taking place in the world. Before heading towards how the law has been a driver to the society’s car, it is necessary to be aware of certain social issues for which the law has actually worked and should work more in order to erase the issue completely from the world. Some of these major social issues that require the law to come to the ground and be an instrument for social change have been discussed below.

Racial discrimination –

Racial discrimination is one such social issue that has been haunting several parts of the world until now. Racial discrimination involves spreading of inequality between two groups of people on the basis of skin colour or their ethnic origin. As most Americans have said that the world still has to go a long way to eliminate racial discrimination, statistics also reveal the same. Parts of America, Africa and India have been facing racial discrimination on a severe basis. Racial discrimination welcomes inequality in the society which is unfair and not right. Taking into view a picture of America, the people have revealed that law has been effective to some while have relatively also failed to get in touch with many regarding racial discrimination. The Americans say that while the democrats will be of the view that equality in terms of colour has not been achieved yet, the Republicans will be of a view that the law has already done its job of bringing equality between the Blacks and the Whites. Several countries have brought in anti-discrimination Acts to drive away racial discrimination also.

Climate change –

An issue that has been recently added to the list of social issues is climate change. Climate change is a social issue because it is affecting the society at large in a lot of many ways. Several great men have said that treating climate change as a social issue will involve more participation of the people so as to be aware of the circumstances that it can lead to. Typhoons as a result of climatic changes have started affecting several regions of the South Pacific already. Several other parts of the world are facing issues related to climatic change. The earth is slowly losing its biodiversity to this issue. Conventions, discussions, treaties are being carried out to curb this social issue from getting enlarged. The usage of law by means of treaties, acts and conventions shows that law indeed is an instrument to create a social change.

The exploitation of women and children –

The exploitation of women and children has been a common social issue for the entire world. This is one such social issue which indeed follows the cyclic theory. Women have always been subject to suppression for men taking dominance over them. This has also initiated the rise of crimes against women compared to that of men. The exploitation of children in terms of child labour, child abuse, child marriage, child trafficking are common insights. There have been several laws by which these factors have been regulated to bring in a social change and upheld children rights so as to provide them with an environment where they can grow to become responsible citizens of the nation.

The social issues that have been mentioned above are categorized as some of the major social issues that the world is facing now and it is only through legislations that a change can be brought in the society.

Law as an instrument of social change in India –

India being a diverse nation, has different groups of people living in it and in India, the effect of the society on the people is comparatively more than other nations for the fact that there exists a lot of traditions, customs, and cultures in Indian society that influence the public in a large way. Law has been a very influential instrument for the nation to bring in social change both in the past as well as in the present. Several judgments have also been passed by the Indian courts relating to social issues that have made people aware of the laws that are existing so as to prevent themselves from getting affected by social issues. Some of the social changes that have been created by law being an instrument of the same have been provided below.

Fundamental Rights in the Indian Constitution –

Fundamental rights have indeed been a reflection of law as an instrument for straying social change. Fundamental rights enforced right to live freely under Article 21, right to free and compulsory education, right to equality under Article 14, right to freedom under Article 19 and several other rights that prove to be essential to make a difference in the existing society. The fundamental rights are enforceable in the court of law which says that the people can approach the court if there is any contravention with the fundamental rights. Right to free and compulsory Education under Article 21A was a new addition under the right to life in the year 2002. The society felt the need to educate its children in order to make them more aware of the social change taking place around him or her. The way it was carried out was by law so as to make education a compulsory necessity for all children up to 14 years of age.

Public Interest Litigation  –

Public interest litigation has been one such mechanism that the Supreme Court gifted to the citizens in order to create a divergent approach towards law on the part of the people. Public interest litigation serves as an instrument using which a person representing a group of people can approach the court on grounds that they are affected by something which is necessary to be prevented to avoid further sufferings. By offering public interest litigation to the citizens, the Supreme Court has been able to reduce the extent of the locus standi thereby enabling any public-spirited person to approach the court without any hesitation. This was indeed a great social change brought by the Indian judiciary once again proving that law can be used as an instrument to create social change in a way as and when required by the society. Public interest litigation has been able to provide a great impact on society in a number of cases. A notable among all of them is the MC. Mehta v. Union of India. In this public interest litigation, it was urged to the Supreme Court to provide people to live in an environment that is free and healthy in terms of water, air and the surrounding and was held that these necessities came under the ambit of Article 21 of the Constitution.

Child marriage –

India being the home of various religions has seen a number of traditions and customs that became law for several years even if the customs or the traditions were not upright and fair. Child marriage is one such unfair customs that use to prevail until the coming of the Child Marriage Restraint Act, 1929. This Act was further amended in the year 2006 and came to be known as the Prohibition of the Child Marriage Act, 2006. Child marriage is in one-way exploitation against the girl child. In an age when children should pursue education, they are married in order to remove responsibilities on the part of the parents and society. The impact of the same on the child is severe. The legal force was necessary in order to remove this social issue from society because society was in need of the same. Therefore legislation was brought in for the society to follow in order to create a social change.

Rape –

More than just being a social issue, rape occurs due to the mindset of the people in the nation. Rather than categorizing it as to who commits it and who suffers and keeping a mainstream discussion, rape can simply be defined as sexual exploitation of a person by another person for the satisfaction of the latter.  It is only through law can there be a change in the mentality of individuals in the society so as to stop committing such a heinous offence. India has seen a steep rise in rape cases among the females which also say that before making the girls of our society aware, it is necessary to educate our body on the larger part. A social change by bringing change in the minds of the people can be brought about by creating a strong deterrent for the offenders which can as well act as fear for them and make them think before committing anything of this sort.

Section 377 –

Section 377 of the Indian Penal Code,1860 that use to criminalise unnatural offences that is if intercourse takes place between two men or between two women, the same will be declared as an offence under this provision was scraped off by the Supreme Court of India on the grounds that homosexuality is no more an offence in the eyes of law. Supreme Court in the landmark judgment of Navtej Singh Johar v. Union of India decriminalised all kinds of consensual sex among adults which were inclusive of homosexual sex also. This decision by the apex court brought in a revolutionary change in the Indian society, traditions and beliefs. It was a welcoming judgment for the majority of the people especially the queer community. The  Supreme Court in a way established Article 21 once again placing that every individual has a right to life and personal liberty which should not be curbed due to societal norms.

Loopholes in the law to make a social change

We have previously dealt with the fact as to how can the law be used as an instrument for creating social change along with the fact as to how has the law been useful in creating an impact in society. It is now necessary to pint out the drawbacks of law as an instrument for creating a social change so that such drawbacks can be taken care of in order to enable law as an efficient instrument in bringing about a social difference. We have discussed several social issues that have been controlled by the enforcement of law but have not been removed yet.

As social issues take time to remove, the law should be strong enough to accelerate that change. Rape laws have been laid down but rapes are not decreasing. Every other day in the newspaper there will be a rape incident that has taken place. This clearly states that the laws that are already present are not strong enough to bring about social change. Racial discrimination and caste discrimination are being faced by the world until today. Protests, mass gatherings, everything are failing because the laws that are present are not having a strong root to bring in a social impact. Homosexuality has been brought to the mainstream but not many accept the same as it goes against the social norms. It is, therefore, necessary to address these social issues with stronger law enforcement so that people start taking the laws seriously and carefully.

Conclusion :  

Thus, social issues are interconnected as opposed to separated and law is a mirror to know how people are identified with each other. Effective implementation of law as an instrument or device of social change should work in tandem with social and cultural life of people of India. Transformation of social system according to the need of the times and in accordance with the modes and mores of the people is a matter of necessity. A striking balance between instrumentality of law and folkways and mores of the people would really pave way for real justice in action and thus leads to empowerment of the society.

References :

How can the law be used as an instrument for creating social change

file:///E:/into%20legal%20world/week%204%20study%20materials/SSRN-id1501262.pdf

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