THE PARALLELISM BETWEEN LAW AND SOCIAL TRANSFORMATION IN LIEU OF CONTEMPORARY DEVELOPMENTS
Author: Praneel Panchagavi, II Year of B.A.,LL.B(Hons.) From Symbiosis Law School, Pune.
In the contemporary world, law is probably the most effective tool for social transformation. However, the question arises whether that is a result of the social forces bringing in a change in laws or the legal forces that make the society abide by it? To investigate this issue, it is important to dwell into the intricacies, drawing a distinction between both topics. In ancient times, the societal norms were framed to be just, equal, and reasonable for all, constituted as laws by a regulating body which governed the individuals in a society, who were backed by sanctions. This concept has prevailed and transformed over time, to be a set of binding rules that govern an individual’s behaviour in a society. The concept of social change and laws are interlinked and interchangeable so as to reform society. For example, the practice of sati had been a social issue which was unjust and unreasonable. Thus, in 1812 many social reformers such as Raja Ram Mohan Roy and activists stood up against it, but were unable to make any significant changes, as the society believed that the practice of sati was part of their tradition. It was only when this practice was banned on 4th Dec 1829 in the Bengal region by Wiliam Bentick , through a regulation which declared such practices illegal. It was the social reforms that had an impact on the implementation of the regulation as the issue was brought up to the law enforcers. And the legal force made people abide by it, which brought a change in the society. On fourth September 1987, an 18 year old girl, Roop Kanwar was made to perform sati and the Special Court in Jaipur held eleven individuals guilty for the act. Thus, the legislature further took steps to abolish the practice by implementing special law under the Commission of Sati Act, 1987. Through the example of abolishing sati practice, it was evident that the legal forces had a greater impact on social change as it makes people abide by it. However, mere social reforms are not effective in most instances to bring a complete change in society. And, law plays a crucial role in implementing the change. The creation and amendment of laws are undertaken by various governmental bodies around the world. In India, it is undertaken through legislature and judiciary. The legislature has the ability to enact new laws or amend the previous ones as per the need of regulation of society, and the judiciary interprets the laws and keeps a check on whether they’re just and reasonable.
It is interpreted by American Judge Benjamin Cordozo that “final cause of law is the welfare of society”, thereby implying that the primary role of laws is to be flexible so as to bring in relevant changes for the welfare of society. The changes that legal reforms bring are equal to all under rule of law, which holds that nobody is above the law as mentioned under Article 14 of the Indian Constitution; thus, the law is the supreme ruling power of the state. As seen in the realist approach to law, the laws have to be dynamic in nature; as the society is changing, so should the laws. Therefore, legal reforms help in bringing a peaceful change in the society, the way of social change is systematic, and the constitution plays a major role in it, which makes people abide by it .
Law and legal reforms as an instrument for social change
Law is responsible for social change because it brings a peaceful change in the society. There have been many controversial social issues in the past which law has tackled and brought peaceful change in society. For example, untouchability was a major social issue, and law helped eradicate this issue by enforcing Article 17 of the Indian Constitution and the Untouchability Offences Act 1955, in which anyone who interferes with people in their social conduct and from entering places, is punishable under law.This law made sure of equality among the society and it did so by peacefully enforcing a rule in the society. Another example of a peaceful change being brought by law is by tackling the social issue of child marriage, which some believed to be part of their traditions. The children, especially girls, being married at a young age, prevents them from enjoying their childhood and getting education, instead it binds them to household duties. Although many social reformers tried to reform the social issue, it was only when the Child Marriage Restraint Act was enacted in 1929 that curbed the practice. It was further amended in 2006, to form the Prohibition of Child Marriage Act, 2006. In both of these issues, though there were attempts to bring reforms in society by many reforms, they were unsuccessful as there wasn’t a binding law. Thus, people were adamant about their practices being a tradition. Law is dynamic, as society evolves and norms change, so does the law in order to maintain peace and order in the society.
A systematic change in the society
Law is responsible for social change because it brings a systematic change in society. If a social change comes into law, it may bring unsystematic things into the domain. When a law is created, it is a very thoughtful process as it considers all aspects necessary to maintain peace and order in society and the procedure of doing so is systematic as well. The constitution prescribes the way affairs in parliament shall be conducted, how the law is to be discussed, how it is to be passed with majority, and therefore it is a parliamentary form of democracy which always looks at a positive change to be made in the society. But, if the law created by parliament is applied to the people, it may not take into consideration the feelings of the people, how they want the law to be. Thus, there might be a disparity in people’s perception about the law and what they feel the law ought to be and how it is. In order to overcome this disparity, the government can take a deeper look into the matter and issues in the society and what people really feel about the issues so that a more precise law and rule can be made which will meet the people’s requirements in maintaining order. The judiciary also plays a key role because the cases it resolves and the way it interprets the law provides a major insight as to what the current issue in the society is and how it could be resolved. Thus, the law brings a systematic change as it involves executive, judiciary and legislature in order to bring a law that is just, reasonable and the current need of society.
Constitution as a source of change
The constitution protects the citizens’ fundamental rights, as well as provides the way of functioning of the society and governance. In order to make people abide by the rules, the constitution serves the role of an enforcing body. The chairman of the drafting committee of the Constitution, Dr. B. R. Ambedkar included the ability to amend any part of the Constitution under Article 368, as per the need of the society except the basic or fundamental structure. It was seen being enforced in the case of Kesavananda Bharati v. Union of India.
The Constitution acts as a balance between protecting individual freedom and the social reforms taking place. The fundamental rights form the core of the constitution, which are mentioned under part III of it, as it provides some of the basic rights to all citizens irrespective of their background. It also provides a set of rules that are to be followed by the State in order to regulate the social changes occurring in the society, these are known as Directive Principles of the State Policy, which are mentioned in part IV of the Constitution. Thus, Part III and IV of the Constitution are the key elements for promulgation of social reforms.
Major legal reforms which brought social changes
The norms and ideologies of societies change and evolve over time, which make some of the practices and beliefs redundant in the current day. Though, some people in society abide by the ancient traditions claiming that its part of their custom, the practice themselves are unaccepeted in the society in present times such as the practice of widow marriage, caste system, child labour, etc. The law intervenes in such scenarios and enforces rules and regulations which make people strictly abide by it, so that everyone in society could live in peace and harmony. The law took effort to abolish slavery and forced labor in 1843 and declared it as an offence under sections 370 and 371 of the Indian Penal Code 1860. And Article 23 serves as protection from slaver and human trafficking under fundamental rights. Furthermore, there were many legal reforms undertaken to prohibit child labor such as The Factories Act 1881, which prevented children under the age of 7 to work as en employee. In 1984, the issue of bonded and child labour was brought up to the Supreme Court in the case of Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, where the Court provided some guidelines to eradicate the practice. Thus, it was expanded under the Child Labour (Prohibition and Regulation) Act 1986, which made the minimum age limit to be 14 years of age to be employed. It also includes some of the prohibited work and 65 processes under Schedules A and B. The law has also worked tremendously in the upbringing of backward class people in the society and abolishing the issues arising from caste system, as seen in the case of Lata Singh v. State of U.P, AIR 2006 SC 2522, where the Supreme Court protected inter-caste marriage. And in the case of Indra Sawhney v. Union of India, AIR 1993 SC 477, provided support and justice for the people belonging to backward class. The law also helps in providing equality and justice to the women and their empowerment in the society. Women have been part of many issues regarding injustice due to the patriarchal history of the country, but law has played a major role in their empowerment in the current day. For example, in the case of Gayatri Devi Panjari v. State of Orissa AIR 2000 SC 1531, where the Orissa High Court gave priority to women while allocating merit shops as mentioned under government’s policy. The law also protects and helps children in the society, as seen in the field of education. The Supreme Court included the right to free education under Article 21, in 1992. It was further amended in 2002, to include free and compulsory education under Article 21A. The Right of Children to Free and Compulsory Education 2006, further improved the effort to empower children with education at least till 8th standard. Thus, the law helps regulate various rules and regulations in all aspects of the society to maintain peace and order among all.
Despite law being the best instrument to bring a social change, there are few drawbacks, such as the lack of enough power of authority over citizens. For example, even though there are rules and regulations for uplifting of backward class, still many instances of discrimination are occurring on a daily basis, which suggest that the laws that are in place currently are not strong enough to prohibit such acts. In a developing country like India, which is mostly constituted by rural regions, the society is still predominantly patriarchal and resistant to societal reforms with regard to children and women rights. Thus, there needs to be stricter laws and regulations which people abide to, despite of the norms set by the society as some of them might be outdated in current day, establishing the authority of governing laws over its citizens to maintain equality and harmony.
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