This article has been written by Oishika Banerji, from Amity Law School, Kolkata. This is an exhaustive article that deals with the usage of the law as an instrument of social change.
Table of Contents
Introduction
Law can be simply defined as a system of rules that are used to regulate a society or rather control it. Why a society requires control is because there is always a necessity to keep a balance between society and the people living in it so that they can coexist interdependently which in turn will help in bringing social change. A society is a heterogeneous place where people of all class, caste, creed, colour, gender, background resides. It is essential that no difference should be created among these people irrespective of their identities bringing homogeneity which can only be carried out by the subject of law. Social change is something that every society and its people look forward to because a change for good is always welcoming. Law plays an indispensable role in bringing in a social change. A lawless society is absent of harmony and peace between the people and the society.
As a society consists of all kinds of people, there is always a chance of one group of people to be in the position of authority and dominance due to certain factors like money, power, and status to rule over the other groups who are relatively weak. This scenario is nothing new for every society once in a while have experienced such a setup. Not only this but society is subjected to several other issues as well. Some of the notable being poverty, drug abuse, corruption, prostitution, rape, lynching, child marriage, acid attacks, child labour, discrimination in the form of caste, race, colour, gender etc. Law acts as a driving wheel for society to eliminate all forms of hurdles by bringing legislation and statutes that will help make a difference in the present and the future society. The society has been through several modifications in the past years and law has indeed been helpful in bringing changes but let’s not forget that societal issues are not disappearing completely on the contrary they are accelerating. It is time for society to utilize the laws that are existing efficiently so that the laws can be effective to bring about a social change in its true sense. Therefore the solution to the question as to how can the law be used as an instrument for creating social change lies in the society and its people itself.
The relationship between law and social change
The term social change is used in several subjects such as economics, politics, law, and sociology. This says that social change 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 change but at times it is the social change 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 change 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.
Law as a controller of the society
Law can serve society to bring in social change in two different ways which are provided below:
- By providing stability in society and maintain an orderly life within the society
- Bring in social change by changing itself so as to adjust with the demands and needs of the society and its people.
Both these points conclude that the establishment of the rule of law for any society is important for any democratic country like India. Rule of law tells that no man can be held to be above the law of the land and thereby ensures that law is the supreme element that regulates any society. Law is a helpful agency of the State that brings in a social order that the people have to abide by in order to avoid unnecessary conflicts that can act as an obstacle for the overall development of the society. Law can behave as a weapon of the State to create fear in the minds of the people so that they do not by their actions infringes the law of the land. Fear is necessary to bring in consciousness and awareness among the public so that they can think before doing something wrong and in a way protecting the people of the society from any kind of injustice that will exploit them and their lives.
Law, therefore, makes a society a place worth living. To understand social change, it is necessary for the public to be familiar with the law as an instrument of social change. Mere knowledge about the law among the public can bring in vast changes in the way a society transforms. The second point that has been provided above views law as a source of public opinion which means the state executing actions as have been asked by the public. An outstanding example of public opinion being moulded in the jar of law is regarding the defamation bill that the Rajiv Gandhi government wanted to bring about but subsequently had removed the idea of doing so as there was opposition from the public’s end regarding the bill. This says that whenever it is required, public opinion takes the role of law. Thus law can be adjusted in whichever way the society wants it to be so as to use it as an instrument in creating a social change.
The Indian Constitution as an instrument for social change
The Constitution of India was brought to force on 26th January 1950 by the Constitution makers so as to give birth to a transformed India. The Constitution consists of a set of fundamental rights enshrined in Part III of the Constitution which provides the citizens with certain rights that are essential to be regulated in order to bring in a sociological change in the entire nation. Indians had been subjected to oppression for several years before independence and therefore the Constitution was brought about as a basic statute that will govern the movement of all other statutes in the country.
Taking into concern the then existing social structure of the country, the constitutional makers made it sure that the Constitution should not leave out any social aspect that would not come under the ambit of protection. As have been correctly pointed by the chairman of the drafting committee of the Constitution, Dr B.R. Ambedhkar, the Constitution of India can be amended as and when the society calls for it other than the basic structure of the Constitution. This has also been taken into view when the Supreme Court of India was handling the famous case of Kesavananda Bharati v.Union of India. It is the fundamental rights that is one of the ingredients constituting the basic structure of the Constitution. The fundamental rights within its ambit include certain basic rights that are applicable to every Indian citizen irrespective of their background.
Article 14 of the Constitution talks about the right to equality and equal protection in the eyes of law. This very Article of the Constitution promises the rule of law as the very essence of the Constitution. Along with Article 14, the Constitution provides with several other Articles as well which have played a key role in bringing social change. It is not just the fundamental rights that the Constitution provides but also a set of principles that are to be followed by the State to regulate the social changes taking place in the nation. These principles came to be known as the Directive Principles of the State Policy provided in Part IV of the Constitution. Although there is no provision which says that these set of principles that explicitly provided for the State to adopt and follow are enforceable in the court of law, these principles are necessary so that the State does not fail to provide social justice to its people.
Social issues like poverty, discrimination, forced labour, untouchability have been deeply rooted in Indian society for several years. After the Constitution was enforced, these social issues were taken into the concern to be resolved and it is indeed true that India has overcome several social problems affecting the people and the nation at large. The Indian Constitution majorly had been brought about to maintain a balance between individual freedom and promulgation of social justice in the nation. It can be said that collectively Part III and Part IV of the Constitution together has been a driving force to bring in a social revolution in the country and therefore they formed a conscience for the Constitution.
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:
- The laws bringing in a change in society
- 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
Coming towards an end of the discussion regarding as to how a law be used as an instrument of social change, it can be said that law is already an instrument present to bring in a social change and to be precise it has brought in a lot of social changes but it still has a long way to go in order to bring in societal transformation.
References
- https://www.pewsocialtrends.org/2016/06/27/3-discrimination-and-racial-inequality/
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