Law as an Instrument of Social Change
Dr. Anupama Goel Associate Professor, Department of laws, Panjab University, Chandigarh Sohan Singh Research Scholar , Department of laws, Panjab University, Chandigarh
Date : 11/05/2015 - Location : Chandigarh
IntroductionLaw 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 fulfillment of Social Needs, so for the fulfillment 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 results of social change. It signifies a uniform code of conduct without cast, religion, parentage, community and cultural recognition for all citizens of country and also Article-21 Protection of life and personal liberty as a results of social change. In this article 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. Law is rooted in social institutions, in socio-economic network. These social factors influence the course of law or the direction of legal change. This is the outcome of personal and social interactions which are variable and often unpredictable. At the same time, law may itself change norms in various way. For example, in free India, legal abolition of untouchability is an attempt to change a long-standing social norm. Yet it has not succeeded much due to inadequate social support. Thus there is a reciprocal relationship between law and society. The term social change is also used to indicate the changes that take place in human interactions and inter-relations. Society is a web-relationship and social change obviously means a change in the system of social relationship where a social relationship is understood terms of social processes and social interactions and social organizations. Thus, the term, social change is used to indicate desirable variations in social institution, social processes and social organization. It includes alterations in the structure and the functions of the society. Closer analysis of the role of law vis-a-vis social change leads us to distinguish between the direct and the indirect aspects of the role of law.
1. Law plays an important indirect role in regard to social change by shaping have a direct impact on society. For example: A law setting up a compulsory educational system.
2. On the other hand, law interacts in many cases indirectly with basic social institutions in a manner constituting a direct relationship between law and social change. For example: A law designed to prohibit polygamy.Law plays an agent of modernization and social change. It is also as and indicator of the nature of societal complexity and its attendant problems of integration. Further, the reinforcement of our belief in the age old panchayat system, the abolition of the abhorables practices of untouchability, child marriage, sati dowry, etc are typical illustrations of social change being brought about in the country trough law.
1. Role of Legislation and Supreme Court of IndiaA. Legislation An important instrument of change the state employs in the legislative weapon. To start with, it gives expression to the goal towards which the state is moving. India is an outstanding example of the employment of the legislative measures to initiate change. The promulgation of Indian Constitution was the first step in this direction. Institutionalised inequality was an accepted principle of Indian caste system; equal justice under equal circumstances was unknown under the traditional Indian set up; equality of opportunity was meaningless under a system where education and occupation was caste-based. A variety of social legislations are being introduced in independent India to bring about change. They cover legislations for the welfare of the downtrodden in the agrarian sector, to emancipate women, to eradicate untouchability, to facilitate the social and economic development of the tribunal population, etc. All these legislations are slowly but surely making their impact on the Indian social fabric. B. Supreme Court As of today, the decisions of the Court are not just being tested on the touch stone of social justice, but indeed they are being cited of as precursors to social rights. The Court has pro-actively and vigorously taken up to cause of social justice and has gone to the extent of articulating newer social rights such as the right to food, right to health, right to education. Thus, the march of law is clearly in favour of Supreme Court having performed a pro-active role in social change of the languishing masses. It certainly has acted as a catalyst in the process of social transformation of people wherein the dilution of caste inequalities, protective measures for the weak and vulnerable sections, providing for the dignified existence of those living under unwholesome conditions, etc, are the illustrious examples in this regards
Law and Social Change in IndiaSocial change involves an alteration of society; its economic structure, values and beliefs, and its economic, political and social dimensions also undergo modification. However, social change does not affect all aspects of society in the same manner.While much of social change is brought about by material changes such as technology, new patterns of production, etc, other conditions are also necessary. For example, like we have discussed it before, legal prohibition of untouchability in free India has not succeeded because of inadequate social support. Nonetheless, when law cannot bring about change without social support, it still can create certain preconditions for social change. Moreover, after independence, the Constitution of India provided far-reaching guidelines for change. Its directive principle suggested a blue-print for a new nation. The derecognition of caste-system, equality before the law, and equal opportunities for all in economic, political and social spheres were some of the high points of the Indian Constitution. Some areas where law has given the influence for social change are:
1. Area of agrarian reform policy and legislation;
2. Area of implementation of untouchability abolition law;
3. The normative aspects of employment and educational reservation for the scheduled castes and scheduled tribes under the Constitution;
4. The allied field of abolition of bonded labour;
5. The problem of substantive impact of changes in the family law marriage, equal rights of women to inheritance and dowry.Law is an effective medium or agency, instrumental in bringing about social change in the country or in any region in particular. Therefore, we rejuvenate our belief that law has been pivotal in introducing changes in the societal structure and relationships and continues to be so. As of today, the decisions of the Court are not just being tested on the touch stone of social justice, but indeed they are being cited of as precursors to social rights. The Court has pro-actively and vigorously taken up to cause of social justice and has gone to the extent of articulating newer social rights such as the right to food, right to health, right to education Thus, the march of law is clearly in favour of Supreme Court having performed a pro-active role in social change of the languishing masses. It certainly has acted as a catalyst in the process of social transformation of people wherein the dilution of caste inequalities, protective measures for the weak and vulnerable sections, providing for the dignified existence of those living under unwholesome conditions, etc, are the illustrious examples in this regards. Social change involves an alteration of society; its economic structure, values and beliefs, and its economic, political and social dimensions also undergo modification. However, social change does not affect all aspects of society in the same manner. While much of social change is brought about by material changes such as technology, new patterns of production, etc, other conditions are also necessary. For example, like we have discussed it before, legal prohibition of untouchability in free India has not succeeded because of inadequate social support. Nonetheless, when law cannot bring about change without social support, it still can create certain preconditions for social change. Moreover, after independence, the Constitution of India provided far-reaching guidelines for change. Its directive principle suggested a blue-print for a new nation. The derecognizing of caste-system, equality before the law, and equal opportunities for all in economic, political and social spheres were some of the high points of the Indian Constitution. The law regulates the social interests, arbitrates conflicting claims and demands security of persons and property of the people and is an essential function of the state. It could be achieved through instrumentality of law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of the law, which must be achieved by imposing appropriate sentence. Therefore, law as a corner stone of the edifice of 'order' should meet the challenges confronting the society. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. State of M.P v G. Singh, AIR 2003 SC 3191 : 2003(4) R.C.R.(Criminal) 564 : 2004(1) Apex Criminal 559 - Law Finder Doc Id #64347. The law in order to be legitimate and legal must also satisfy the mandates of the Constitution of India. The Constitution of India is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed as that they can understand and appreciate it. The more they understand it the more they love it and the more they prize it. It is really the poor, starved and mindless millions who need the courts protection for securing to themselves the enjoyment of Human Right. Justice Dwivedi in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225 - Law Finder Doc Id #107467. The Constitution precedents cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face the death and destruction. Justice Chandrachud in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225 - Law Finder Doc Id #107467. Then, neither the court nor the Constitution will save the country. Praveen Dalal: 'Sociology of Public Interest Litigation in India The Constitution, unlike other Acts, is intended to provide an enduring paramount law and a basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a long lapse of ages. It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future. It contains a framework of mechanism for resolution of constitutional disputes. It also embeds its ideals of establishing an egalitarian social order to accord socio-economic and political justice to all sections of the society assuring dignity of person and to integrate a united social order assuring every citizen fundamental rights assured in part III and the directives in part IV of the Constitution. In the interpretation of the Constitution, words of width are both a framework of concepts and means to achieve the goals in the preamble. Concepts may keep changing to expand and elongate the rights. Constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth. The intention of the Constitution is, rather, to outline principles than to engrave details. Thus, law should sub serve social purpose. Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophets vision, and capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. The judge must also bear in mind that social legislation is not a document for fastidious dialects but a means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable of expanding freedoms of the people and the legal order can, weighed with utmost equal care, be made to provide the underpinning of the highly inequitable social order State of Karnataka v Appa Balu, (1995) Supp. 4 SCC 469 : 1993(2) R.C.R.(Criminal) 635 - Law Finder Doc Id #44105. In this background we will discuss the 'need' of amending the Information Technology Act, 2000(Act). The first way that law presents social change is obvious: Coercion. As Lawrence Friedman put it, Law has its hidden persuaders--its moral basis, its legitimacy--but in the last analysis it has force, too, to back it up. Law carries a powerful stick: the threat of force. This is the fist inside its velvet glove. Law is used directly and indirectly to hinder both legal and illegal social change efforts. Electoral challenges, for example, are deflected by state legislatures, which devise unreasonable deadlines, excessive petition requirements, and other hassles to keep third parties off the ballot. As an old anarchist slogan put it, if voting could change the system, it would be illegal. Activists fare little better in court. Given litigation delays, costs, procedural pitfalls, and judges' backgrounds, radicals are rarely successful. The doctrines of standing, governmental immunity, and political questions, the substance of conservative legal principles, and the likelihood of reversal upon appeal limit how much even a sympathetic judge can allow activists to win. Since law is created by the powerful rather than the weak, dissident concerns are often simply dismissed as frivolous. When activists demonstrate peacefully, they often find the law against them. Although it is no longer legitimate to arrest those who advocate change, the benign view of our "First Amendment freedoms" has a fairly short history, and has never been as absolute as many think. In the wake of the Persian Gulf War, and remembering the recent treatment given flag burners, any confidence that the public supports truly free speech is unwarranted. Surveillance, infliltration, and repression of legal activist groups continue. Harassment of activists doesn't come just from government. Corporations often file libel and other lawsuits against people who use letters to newspapers, public statements, and similar methods to criticize corporate projects such as toxic waste dumps. More than 1000 of these "Strategic Lawsuits Against Public Participation" have been filed within the past decade. Although most of these suits are legally "unsuccessful" in that free speech rights are upheld and the activist pays no damages, the suits serve their purposes of transforming political debates into private disputes and, more significantly, tieing up activist's time and resources, bankrupting the activist, often causing the abandonment of public advocacy. When activists move on to direct action and civil disobedience, law's coercive force is clearest. Police infiltration and instigation of violent activities, selective prosecution, and preventive detention add to the likelihood of guilty verdicts and disproportionate sentences. Judges usually prevent defendants from presenting a necessity defense based on their motivations for breaking the law. When the jury is told the incident is a "simple trespassing case," for example, rather than a political act, the primary concern of the activist is dismissed as irrelevant. Similarly, judges in most states do not tell juries about jury nullification, which allows jurors to acquit despite the evidence. The result in both cases is that activists are likely to be convicted even if the jury is sympathetic. In response to legal coercion, psychologists have helped defend political defendants, and this help should be expanded. Despite the value of these efforts, though, their limitations should be kept in mind. Tools devised for radical purposes cannot be restricted to those ends; any useful methods will be adopted by more powerful forces. For example, scientific jury selection, developed to help the Harrisburg Seven defend themselves against Vietnam-era conspiracy charges, is mostly used today not by activists but by large corporations paying high fees to Litigation Sciences and similar companies. 2. Substantive Assumptions About Human Nature The second way law opposes social change is through its assumptions about human behaviour. Psychologists seek to identify these, but more attention should be paid to two underlying assumptions discussed by June Tapp. "The myth of humankind's inherent lawlessness," according to Tapp, ignores the fact that "the search for rules and rule dependency appears early in human life and is visible across all activity from games to government and language to law." "In essence," she added, "no community is truly lawless," and adherence to the myth perpetuates a law-and-order mentality. The flip side of the lawlessness myth is the legality myth.The crippling aspect of the legality myth is the assumption that legality and its correlates of justice, obligation, and responsibility reside only in the law. . . . If [this] continues . . . then the emergence of an authoritarian repressive law is more likely. 3. The Ideology of Law's Legitimacy The third way law inhibits social change is through the central myth that the law is "legitimate," that obedience to law is appropriate because legal authorities have the right to make demands. This belief, according to Friedman, "prevents anarchy and induces people to obey orders and commands without the use of force." Legitimacy is necessary for the political system to continue in its current form, since (as Haney put it) "in a very real sense, the 'consent of the governed' depends upon such fictions," including the fiction that law is sacred (McBride). Psycho legal scholars who assume law's legitimacy should consider the degree to which their own views are shaped by the legitimacy ideology. Isaac Prilleltensky recently noted that "At best, [psychology's conforming message] may be preventing changes that could enhance the well-being of the population. At worst, it may be silently endorsing unjust social practices," reinforcing dominant values through so-called value-free scientific statements that provide an asocial image of the human being . . . essentially independent from sociohistorical circumstances. [This leads people] to underestimate the impact of adverse social conditions on their lives, thereby reducing the likelihood of engaging in activities in defiance of the status quo. 4. Preoccupation With Procedure Rather Than Substance The fourth way law opposes social change is in blunting appeals for substantive justice by focusing instead on procedural justice. As Tom Tyler noted, research such as his on procedural justice poses a potential danger when it identifies the degree to which legal procedures are seen as satisfying or fair, because "Government leaders may find it easier to create conditions of 'perceived fairness' than to solve problems or provide needed benefits." Although Tyler minimized the possibility of this false consciousness, Haney saw this as the Supreme Court's "let them eat due process approach." Rather than remaining neutral and dispassionate, exposing false consciousness should be one of our central concerns. 5. Focus on Rational Technicality Rather Than Equity The fifth way law stands against social change is the insistence that "the rule of law" is superior to non law, that the United States is a "government of law, not of men." Related to the lawlessness and legality myths is the assumption that problems should be resolved through law--seen as objective, rational, and hardnosed--rather than through nonlegal means--seen as subjective, ruthless, and unpredictable. Law is better, it is said, even if the application of general principle to a particular case brings an unfair result, because the only alternative to law is chaos. The opposite of legal technicality, however, is not chaos, but equity. Under equity principles, legal technicalities can be set aside to prevent injustice. As might be expected, although equity's use as a discretionary corrective is accepted in theory in most legal systems, in practice judges often dismiss it precisely because equity implies that the law is inadequate. Consequently, equity has been limited to narrow areas of law and to relatively ineffective remedies. As already noted, judges resist application of equity-like doctrines such as jury nullification and the necessity defense. 6. The Self-Defeating Character of Legal Solutions The final way law opposes social change has to do with the self-defeating character of legal solutions, despite their seductive appeal. There are three points I want to make. First, reform is seductive because it assumes that law can be transformed so significantly that it will operate at a "higher principled level," as Tapp put it. This is doubtful, though, because the reasons for which law exists conflict with principled levels of reasoning and ethics. Law exists to maintain rather than change the status quo, to protect some at the expense of others, to control rather than liberate. Second, reform efforts may succeed, but at the cost of unpredicted "side-effects" that complicate other problems or lead to long-term failure. A systems perspective must acknowledge that social problems are interconnected rather than isolated. Third, and most important, the very success of legal solutions makes things worse, because legal solutions reduce people's ability and motivation to work together with others on community solutions to social problems. Legal reforms may work, but only by forcing complex human interactions into an artificial framework, creating dependency on legal authorities. Black noted that "in theory, law makes trustworthiness unnecessary, even obsolete. When law is fully in command, morality itself loses relevance. Right and wrong become a speciality of professionals such as lawyers, police, and judges." McBride argued that law "has an alienating or even a repressive effect . . . , especially on those who occupy subordinate social roles." And Lerner pointed out that law teaches us that we are not capable of being good unless we are forced to be good. II. The need of change
The Act has been enacted 'primarily' to deal with e-governance and e-commerce. The 'legislature' was, however, cautious and wise enough to incorporate provisions dealing with 'contraventions' and 'offences' using the information technology. A 'Constitutionally ideal amendment initiative' must consider the following aspects:
(a) Nature of amendment: The concept of 'indepth review' suggests that the present Act is 'improper' rather than 'imperfect'. The stress seems to be on 'complete change rather than 'necessary minor modifications'. This is a wrong strategy that has unfortunately been adopted by the government.
(b) Need of amendment: The need of amendment is not based on 'germane reasons' but is primarily guided by the recent 'MMS controversy'. The law is meant for the 'People of India' and not for any particular 'segment'. The most embarrassing moment of the Indian Legal System was not the ' arrest' of the CEO of the Bazee.com but the 'interference of the USA in the sovereign governance of India'. It must be noted that the managing of e-commerce business requires certain safeguards to be followed by those who are deriving benefits out of it. If these minimum safeguards' are not followed than the law will take it very seriously. The 'rule of law' does not recognise any appeal of a 'foreign country' or 'domestic pressures'. Thus, the amendment of the Act must be guided by germane reasons only and it should not be based on irrelevant, arbitrary, unreasonable and extraneous considerations.
(c) Areas of amendment: The law exists to serve the needs of the society, which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, Then I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool." The law must, therefore, in a changing society march in tune with the changed ideas and ideologies Central Inland Water Transport Corporation Ltd v. Brojo Nath Ganguly, AIR 1986 SC 1571 - Law Finder Doc Id #90570. At this stage the words of Justice Bhagwati in the case of National Textiles Workers Union v P.R.Ramakrishnan, (1983) 1 SCC 228 need to be set out. They are: ' We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke 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 constantly be on the move adapting itself to the fast-changing society and not lag behind. The Act require amendment to fill in the following 'grey area' on a priority basis:
(i) The 'right to information' as flowing out of Article 19(1)(a) of the Constitution,
(ii) The 'right to know' as flowing out of Article 21 of the Constitution,
(iii) The 'right to privacy' as flowing out of Article 21 of the Constitution,
(iv) The need of protecting the 'electronic data property'. The 'paper based data property' can be sufficiently protected by the Indian Copyright Act, 1957,
(v) The need of providing a 'sound e-governance base' that should include effective e-justice administration facilities,
(vi) The need for providing a more stronger e-commerce base,
(vii) The need to strengthen the 'Internet Banking' infrastructure,
(viii) The need to strengthen the 'Cyber Insurance Business infrastructure',
(ix) The need to protect people of India from 'Cyber Terrorism' in India,
(x) The need of adoption of the 'techniques of aggressive defence' in India, etc.
These are the issues that need an immediate attention of the 'legislature' and not other 'self serving changes' which will leave the Act more vulnerable to 'unconstitutionality'.
(d) Place of amendment: One of the thriving needs of change is in the field of 'cyber forensic'. The Act, however, is not the right 'place' to make the change. In India we have both 'substantive' and 'procedural' laws. The Indian Penal Code and Information Technology Act are 'substantive laws' whereas the Indian Evidence Act and Criminal Procedure Code are 'procedural laws'. Thus, the inter-mingling of procedural laws into substantive laws is not a desirable exercise. This mandates the amendment of the 'Evidence Act' rather the 'Information Technology Act'.
(e) Ancillary matters: The ancillary matters like 'cyber-cafi regulations', 'blocking of web-sites', etc are not the fit subject for 'amendment'. As far as the regulation of the cyber-cafi is concerned, the respective 'State Governments' can do so through 'notification method'. Similarly, the authority for the blocking of web sites has already been constituted under the provisions of the Act; hence duplicating the efforts and wasting the valuable resources will serve no useful purpose.
If these areas are 'ignored' either in the zeal of amendment process or due to pressure tactics, then the law in this regard would be a 'remedy worst than the malady' hence its amendment should not be undertaken at any cost. If such an amendment were proceeded with, then it would definitely be tested on the touchstone of the provisions of Constitution of India and will not survive the test of 'constitutionality'.III. Alternative strategy The cumbersome, time consuming and expensive process can be avoided by issuing 'simple notifications' by the government that will clear the mist surrounding the present atmosphere. Similarly, since the matter is before the court the same can also be taken care by the courts in India. Legislatures are not best fitted for the role of adapting the law to the necessities of the time, for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society Central Inland Water Transport Corporation Ltd v. Brojo Nath Ganguly, AIR 1986 SC 1571 - Law Finder Doc Id #90570. Thus, Courts in India can provide a much better solution to this situation by adopting the 'purposive and updating modes of interpretation of the provisions of the Act. It is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law. State of Maharashtra v. Dr Praful. B. Desai, (2003) 4 SCC 601 : 2003(2) R.C.R.(Criminal) 770 : 2004(1) Apex Criminal 111 - Law Finder Doc Id #50914. IV. Conclusion The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade, that decision cannot be allowed to operate Fonkarlal Bajaj v U.O.I, AIR 2003 SC 2562 - Law Finder Doc Id #117446. Any decision of the government ignoring these 'mandates' will be declared to be unconstitutional, no matter how much pressure is put on it. Relying on law to transform people's behaviour is always risky and often short-sighted. Instead of a technological quick fix, we should radically transform social structures so that beneficial behaviour develops naturally under the circumstances rather than because of legal threats or the mystification of legitimacy. As psychologists, we should become more familiar with the literatures on value change and empowerment, social movement participation, and utopian communities. We should be advocates for radical perspectives defensible on both psychological and political grounds, in keeping with values such as dignity, autonomy, equality, and justice.
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