Law as an instrument of Social Change

Sarungbam Lucy

“If the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and chock its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore contently be on the move adapting itself to the fast changing society and not behind”. – Justice Bhagwati.

There are two sides of each coin; similarly, each act of any person is also, either good or bad, and it is the rule, since existence of the society; good (dharma, or satya) has to be accepted and the bad prohibited (evil, a dharma, asatya). This rule still exists and shall be till the end the civilization. Earlier, society was customarily based on Morals. But, as soon as society is replaced by the state, morality too gets replaced by the law. If, we want to change any existing custom or behaviour in society, it should be changed by the instrument of law only, otherwise not.

The law and social changes is a unique subject and studies the social problems of the society and their solutions here, through legal approach. In fact, there are two modes of changing law. First is, “law changed the society”; which means that the law of the land compels the society to be changed according to the law. When any dispute involving the question of law, came before the judiciary, the judiciary on the basis of rule of law, forced the society to change itself the existing custom or law .Second is, “society changed the law”; it means law is made by the society according to its requirement by its democratic instrument. i.e. Legislative or  by adopting custom and usage. The prime function of the legislators is to enact the laws, according to the desire of society. Whenever any question arises in court of law regarding t validity of that law if court finds that constitutional, moral, and just then holds it valid but if not so then declares it invalid and unconstitutional.

Law is a form of Social Science. Society and law are closely related to each other. Law tells the nature to live the social life and this also increases with the Economic, Scientific and Technological progress. Law also changes with Social Changes and plays an important role in the fulfilment of Social Needs, so for the fulfilment of social need, there is a provision by constitutional amendment and this is the responsibility of judiciary that law which violates the constitutional provisions, public interests and fundamental rights should be declared void. Legal reforms have been at the centre of the agenda for strategizing gender justice in India. Uniform Civil Code is merged in the Article- 44 by Indian Constitution as a result of social change. It signifies a uniform code of conduct without caste, religion, parentage, community and cultural recognition for all citizens of country and also Article-21 ‘Protection of life and personal liberty’ as a result of social change. In Article- 21 new prison jurisprudence right to Speedy Trial, Right to Free Legal Service, Right to Human Dignity, Right Against Torture have been made some of the components of the fundamental rights. Law is a medium through which social objects can be achieved. So, change of law is must with social changes, otherwise law will be of no value.

SocialChange:

Indian judiciary has generally been found to be alive to the needs of change happening in social thinking. By giving due consideration to the same while interpreting statutes in particular cases, the court have brought out their fresh implications and thereby added new dimensions to the law. In the process, new social interests are furthered and protected. Judicial action as determined in part by the subject matter and in part by the judiciary’s responses to changing facts or social life helps in recognitions/silent evolution of new law.

The path of social change in India has been charted-out by the constitutional provisions of the preamble, the Fundamental Rights and the Directive Principles. These norms have been set by “we the people of India” before themselves are prescribed in the trilogy of the Constitution, and which have been described to be the conscience of the constitution.

The preamble of the Constitution secured to its all citizens Justice – social, economic and political, liberty, equality and fraternity. According to Art.13 (2) – “the State shall not make any law, which takes away or abridges the rights conferred by Part-III and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

Law as an instrument of social change:

It is correct that law is an instrument of social change, law changes its shape according to the requirement of society or society changes the law through enactment of statutes. In India, every session of Parliament and State Legislature introduces the Bills to amend the Act(s) or enact Act(s). On the other hand, where, any question of facts comes before the court, judiciary (especially higher judiciary) is interpreting the law according to the requirement of society.

Social changes are necessary within society for development. But this change can be made by the tool of law otherwise; it is very difficult to clear the hurdle of custom and usage. The society is in the habit of doing the things, if you want to change that, then law is the strongest instrument. If law prohibits any act, then it has to make it punishable. In India, law prohibits the Sati, child marriage, child labour, bonded labour, and advocates free and compulsory primary education, video-conferencing as valid witness, maintenance to Muslim women and children, intra-state adoption, rehabilitation of the child of prostitute, prostitute are victim not accused, protection of women from sexual harassment at working places, compensation to the victim of crime, etc.

1. Free education is a fundamental right:

The Hon’ble Supreme Court held that the right to education is a fundamental right under Art.21 of the Constitution, which cannot be denied to any citizen by charging higher fee known as capitation fee. The right to education flows directly from the right to life. The right to life under Art.21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education.

The five Judges bench by 3-2 majority partly agreed with the Mohini’s case decision and held that right to education is fundamental right under Art.21 of the Constitution as it directly flows from “right to life”. But as regards to its content, the court partly overruled the Mohini Jain’s decision and held that the right to free education is available only to children until they complete the age of 14 years, but after that the obligation of the State to provide education is subject to the limits of its economic capacity and development. The obligation created by Arts.41, 45 and 46 can be discharged by the State either by establishing its own institutions or by aiding, recognising or granting affiliation to private institutions. Private education institutions are a necessity in the present day context.

The legislature has amended the Constitution, by introducing Art.21A and made right to education, free and compulsory for children of the age 6 to 14 years. On the other hand, Art.51A (k), imposes the duty on every parent or guardian to provide opportunities for education to his child or ward between the age of 6 and 14 years.

2. Social Change and Public Interest Litigation in India

Social change is the necessity of any society. In India it is done through Public Interest Litigation. In this article an attempt was made to assess the impact of PIL over Indian Society. The jurisprudence of PIL is necessary to understand the nature of PIL in India. Such is the disillusionment with the state formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortunate. In these circumstances one of the best things that have happened in the country in recent years is the process of social reform through Public Interest Litigation or Social Action Litigation. Late 1970s marked discernible shift from legal centralism. Legal pluralism was very apparent now. It was realized that social conduct was regulated by the interaction of normative orders, notion of popular justice, community justice, and distributive justice were sought to be institutionalised, though outside the sphere of the formal legal system and in opposition to it.

3. The problem of substantive impact of changes in the family law marriage, equal rights of women to inheritance and dowry.

For purposes of constitutional competence, these actions are characterized as those coming under the writ jurisdiction of the Supreme Court of India under Article 32 of our Constitution and the various High Courts, under Article 226. The traditional extent of writ jurisdiction was of course a colonial inheritance from the British-era and the remedies that could be invoked were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari.

Posted by on April 18, 2013. Filed under Article. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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