Law as an instrument of social change

The law, through legislative and administrative responses to new social conditions and ideas, as
well as through judicial re-interpretations of constitutions, statutes or precedents, increasingly
not only articulates but sets the course for major social change. Attempted social change,
through law, is a basic trait of the modern world. Many authors consider law as a desirable
necessary and highly efficient means of inducing change, preferable to other instruments of
change. In present-day societies, the role of law in social change is of more than theoretical
interest. In many areas of life such as education, race relations, housing, transportation, energy
utilization, protection of the environment, and crime prevention, the law and litigation are
important instruments of change. Law plays an importantindirect role in social change by
shaping various social institutions, which in turn have a direct impact on society. [eg.
Mandatory school attendance upgraded the quality of the labor force, which in turn played a
direct role in social change by contributing to an increased rate of industrialization. The law
interacts in many cases directly with basic social institutions, constituting a direct relationship
between law and social change]. Social change through litigation has always been an important
feature in the US. Whether the change produced by such action is considered ‘constructive’ or
‘destructive,’ the fact remains that law can be a highly effective device for producing social
change.

The efficacy of Law as an Instrument of Social Change

As an instrument of social change, law entails two interrelated processes:

the institutionalization and the internalization of patterns of behavior.

 Institutionalization of a pattern of behavior refers to the establishment of a norm with

provisions for its enforcement (such asdesegregation of public schools).
 Internalization of a pattern of behavior means the incorporation of the value or values implicit in
a law (eg. Integrated public schools are ‘good’).

The extent to which law can provide an effective impetus for social change varies according to
the conditions present in a particular situation. Evan suggests that a law is likely to be
successful to induce change if it meets the following seven conditions:

1. Law must emanate from an authoritative and prestigious source

2. Law must introduce its rationale in terms that are understandable and compatible with existing
values
3. Advocates of the change should make reference to other communities or countries with which
the population identifies and where the law is already in effect
4. Enforcement of the law must be aimed at making the change in a relatively short time
5. Those enforcing the law must themselves be very much committed to the change intended by
the law
6. The instrumentation of the law should include positive as well as negative sanctions
7. The enforcement of the law should be reasonable, not only in the sanctions used but also in the
protection of the rights of those who stand to lose by violation

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.