LAW AND SOCIAL TRANSFORMATION

Assignment On: Law as an Instrument of Social Change

Sumbitted To:

Prof Ms. Janaki Misra

Submitted By:

Ms. Bhavna Pandey

LLM 1st Year, Business Law
Semester I, Roll No.41
SNDT Womens’ University, Juhu, Santacruz.
INDEX
SR NO. PARTICULARS PAGE NO.

1. Introduction 3

2. Research Methodology 4

3. Reasons Attributed for Social Transformation 5

4. Interaction between law and social transformation 6

5. Importance 9

6. Challenges of Social Reforms & The Limitations 11

of Law
7. Case Laws 13

8. Conclusion 19

9. Suggestion 20

10. References 21
INTRODUCTION
Law and social transformation is a very unique concept which highlights the studies and changes in
social problems and their solutions through legal approach. Here “ law changes the society” which
means that the law of the land compels the society to be changed according to the law. When dispute
arises the matter is brought before the judiciary, which applies the rule of law principle to change
either the existing custom or law. Secondly society changes the law it means that the law is made by
the society according to the requirement of the democratic institution. It can be brought out either by
legislating function or by adopting customs and practices1. Law has always been seen as an instrument
that could bring out social change. An attempt is made in this paper to emphasize that though there are
several devices to bring about a change and transformation in our society.

Interpretation of the word 'LAW' According to Blackstone, “Law is a rule of conduct, prescribed by
the supreme power in the State, commanding which is right and prohibiting what is wrong.
Jurisprudentially law consists of rules prescribed by the society for the governance of human conduct”.
Law of any civilized country is not denite, but changes according to the demand and circumstances of
the society. Roger Cotter views “Social change is held to occur only when social structure - patterns of
social relations established social norms and social roles changes”. Law not only lays down the norms
which are acceptable to a given society, it also lays down the norms, which the society should adopt in
the interest of its own welfare. The rules or code of conduct which a society develops by experience
shapes into law for the sake of uniformity, consistency, performance and sanction. An acceptable norm
thus becomes a law. The departure there from is condemned as crime in criminal law but civil law
becomes a code of conduct regulating the society or law none can be considered as the most effective
and safest method.
Thus law entails two interrelated processes- the institutionalisation and the internalisation of
patterns of behaviour. Institutionalisation means the creation of norms with provisions for its
enforcement, whereas internalisation means the incorporation and acceptance of values implicit
in a law. When the institutionalisation process is successful it in turn facilitates the
internalization of attitudes and beliefs In our quest to discover the effect of law on social change,
we generally tend to ignore the reverse, i.e., the effect of social change on law. That legal
change reflects wider social change often seems too obvious to require discussion For
example, technological change is one important direct cause of legal change: the
development of the internal combustion engine, the motor car and later of air transport
produced vast areas of new or reshaped legal doctrine to regulate these new features of life
with their attendant possibilities, risks and dangers.
In addition, law can adapt to change in ways that may not be readily apparent on the face of legal
doctrine. Legal concepts can remain in the same form while fundamentally changing their
social functions. Law can adapt to changed social circumstances without necessarily changing its
form or structure. In this project, it has tried to study the interplay between law and social change
– the role of law as an instrument of social change, and the impact of social developments on the
development of legal principles.
OBJECTIVES

 To study the theory of law and social change in

sociological context,
 To study the reciprocal relationship between law and
social change,
 To critically analyse the role of law in social change.
 To critically analyse the role of social change while
framing the law.
 To analyse the role of law in changing of society by the example of India.

RESEARCH METHODOLOGY

The present study is empirical one and qualitative in approach. It has equally focused on qualitative
methods of research. Apart from Primary data, Secondary and published documented data has also
been collected through various sources and analyzed accordingly. To make the study more meaningful
and policy oriented available literature and studies have been consulted and reviewed apart from this
field observations and open ended discussion have also been equally considered and incorporated in
the present study. The filled in questionnaires were thoroughly scrutinized and processed in
computer for drawing out inferences, patterns, trends and conclusions. The secondary data
interpreted and analyzed while critical appreciation of pertinent literature has been ensured in the
project wherever required. Books and other reference as guided by Faculty of Sociology have been
primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have
also been referred.
REASONS ATTRIBUTED FOR SOCIAL TRANSFORMATION
Social transformation occurs due to several factors such as changes in technology, demography and
ideology, changes in political life and economic policy and in legal principles or institutions.
American Judge Benjamin Cordozo said that the “Final cause of law is the welfare of society”. Law
should not be denite but must be transformable according to the requirement and necessity of the
society. The law cannot remain immutable. The researcher is of the view that in a changing society
law should march in tune with the changed ideas and ideologies. Social life has undergone changes
because of communication revolution. Hence to keep in pace with the technological development, Law
has to be competent for detection of various crimes and prevention of the same also. New acts like
Information Technology Act has been brought, rules of evidence has been amended to recognize
electronic transaction. Methods of providing remedies have undergone tremendous change with the
growth of electronic commerce, cyber crime and internet. Articial insemination, test tube babies,
surrogate motherhood and cloning, prenatal detection technique and abortion have challenged the
values of family life. Apart from these, law plays a pivotal role in protecting the environment. The
technological growth has created great pressure on the degradation of environment. As a consequence
of this the legal system had to alter its legal strategies and introduce new principles, doctrines,
mechanisms etc to protect the environment, human habitation and the civic life. Technology is a
blessing and curse, to which law and society have to respond aptly. Apart from society and
environment transformation also happens in the economics sector, culture religion morality social
outlook and very many areas. Here again law weaves its way through economic life creating
possibilities for economic development and placing constraints on the form of development through
very many statutes, Ex: Intellectual Property Rights.
INTERACTION B/W LAW & SOCIAL TRANSFORMATION
The researcher is of the opinion that law is the most effective instrument of social change but at times
social changes becomes law. In India there are two main institutions which makes change in law,
namely the legislature where new laws are enacted or amendments are done to the old acts to suit the
need of the hour. The second institution is our judiciary, where interpretation of the rule of land and
law of land coexist.

Foresight of framers of Indian constitution Law should not be denite but must transform according
to the requirement and necessity of the society arising out of passing of time. It is this foresight in
mind father and main architect of the Indian Constitution Dr.Bhima Rao Ambedkar inserted Art 368 to
the constitution which provides that “Any part of the constitution may be amended by adopting
appropriate procedure except destroying the basic structure of the constitution”. It reects the
acceptance of the need of changing the law even the law of the land when situation warrants.

Necessity of changing the law Indian judiciary has generally been found to be alive to the needs of
social thinking. The courts have brought and their fresh implications and added new dimensions to the
law. As rightly quoted by Justice P N Bhagawati “It is the judge who infuses life blood into the dry
skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the
needs of the society”. To show the instrumentality of law on social change, it is necessary to study
some special changes that have taken place in India, because nothing is permanent but change is
permanent.

Abolition of slavery and bonded labour system To remove slavery from India in 1843, Indian
Slavery Act was passed and it further declared it as an offence by sections 370, 371 of the Indian Penal
Code 1860. Art 23 of the constitution of India protects trafficking of human being and forced labour as
a part of fundamental rights. Though many attempts had been taken to curb the issue of bonded labour
it could be effectively done only through the Act.

Abolition of Sati System Sati Meaning burning or burying live of widow along with the corpse of
her husband. It was considered to be a great honor among Hindus to become a sati since ancient times.
In 1812 Raja Ram Mohan Roy the Indian social reformer started against these practices. The practice
could not be stopped by the society as it was considered as part of their customs and traditions. It was
law which could control it on 4th Dec 1829. The practice was formally banned in Bengal presidency
lands by governor lord William Bentick by a regulation for declaring the practice of sati or of burning
or burying Hindu widows as illegal and punishable by the criminal courts. In post independent India –
sati was not curbed effectively. Legislature took serious steps by introducing a special law for the
treatment of persons who abet sati and made it exemplary punishable upto death sentence under
Commission of Sati Act, 1987. Now in most areas of India it is a forgotten system. These laws relating
to sati, widow remarriage, child marriage were enacted due to public opinion. The laws made during
colonial administration was out of ambit of sociological jurisprudence. They were interested in these
legislations only due to various social reformers and public opinion.

Widows Remarriage The Hindu society prevented remarriage of widows in order to protect their
family's honour and property. It was the efforts of Ishwar Chandra vidyasagar who urged British to
pass a legislation allowing Hindu women to remarry. In pursuance of this The Hindu Widow
Remarriage Act was passed in 1856. Legalising the remarriage of Hindu widows and to provide legal
safeguards against loss of certain forms of inheritance for remarrying a Hindu widow. Thus it
empowered a Hindu widow to live a life.

Prohibition of Child Marriage This practice of child marriage was vehemently seen in Indian
society across various religious communities. Tough attempts were made by many reformers it turned
futile until a law was enacted. The Hindu Child Marriage Restraint Act was substituted by the
prohibition of Child Marriage Act 2006. It introduced child marriage prohibition ofcer and extended
the power of family court to decide the matter under the Act. The act also enhanced the punishment
upto two years rigorous imprisonment or with fine up to Rs 2 lakhs or with both

Elimination of Child Labour Preventing a child from enjoying his childhood is a grave crime. The
Factories Act 1881 was the rst one of its kind to prohibit employment of child below the age of 7years
and working hours were limited. Very many legislations were made and nally we have Child Labour
(Prohibition and Regulation) Act 1986 which generalizes the age of child upto 14 years for the
purpose of prohibition of child labour. The Act has also listed 17 prohibited occupations and 65
processes in Schedules A & B

Right to free and compulsory education In 1992 the honorable Supreme Court declared the right to
free and compulsory education as a fundamental right in the ambit of 'Right to Life' under Art 21 of
the constitution. In 2002 the constitution was amended by inserting Article 21A to implement the right
to free and compulsory education of every child aged between 6 – 14 years and inserted fundamental
duties of parent and guardian. In 2010 The Right of Children to Free and Compulsory Education Act
2009 was put in force with effect from 1st April to provide free and compulsory education from 1 to
8th standard to every child. Thus it can be seen that law protects the life of the children.

Public Interest Litigation The Honorable Supreme Court has adopted the broader approach of the
rule of locus standi to utilize the initiative and deal the public spirited persons to move the courts to act
for the general or group interest even though they may not be directly injured in their rights. The most
important fact regarding PIL is that of relaxing the locus standi concept, any public spirited person can
approach the constitutional courts and could bring to the courts notice of blatant violations of
Fundamental Rights of people who are not capable of being approaching the courts themselves. PIL is
a concept aimed at increasing the accessibility to justice and forms a part of constitutional
jurisprudence in India.

Right to Information For Effective Governance It is best and landmark instruments of law regarding
social change which started in 1975, when the honorable Supreme Court upheld that freedom of
speech and expression includes the right to know every public act done in a public way by their public
functionaries. Right to know is implicit in right of free speech and expression and disclosure of
information regarding functioning of the government must be the rule. The Right to Information Act
of 2005 has proved to be a strong legislation with good teeth because of effective implementation of
the Act.

Female Infanticide A study on the implementation of the Infanticide Act demonstrates that this
particular legislation was a purposive legislation which has positive and negative sanctions, along with
effective administrative mechanism, which led to substantial decrease in female infanticide practice.
This could very well being understood as use of law as an instrument of social control. The Supreme
Court has also played a pivotal role as an institution of social change by the liberal and proactive
interpretation of the constitutional provisions. From the sociological jurisprudence Supreme Court of
India has played an important role in the social transformation with providing access to justice being
made available to the masses. To conclude the researcher is of the opinion that it is only through the
instrument of law the social changes can be effectively brought out and implemented thus empowering
the masses.
IMPORTANCE

Law is very important for a society for it serves as a norm of conduct for citizens. It was also made to
provide for proper guidelines and order upon the behaviour for all citizens and to sustain the equity on
the three branches of the government. It keeps society running. Without law there would be chaos and
it would be survival of the fittest and every man for himself. Not an ideal lifestyle for most
part.Society is a ‘web-relationship’ and social change obviously means a change in the system of
social relationship where a social relationship is understood in 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 functions of the society. Closer analysis of the role of law vis-à-vis social change leads
us to distinguish between the direct and the indirect aspects of the role of law.The law is important
because it acts as a guideline as to what is accepted in society. Without it, there would be conflicts
between social groups and communities. It is pivotal that we follow them. The law allows for easy
adoption to changes that occur in society. Leading law firms, among them Schmidt and Clark, provide
assistance that helps protect individuals’ rights and liberties, thus ensuring a more equitable society.1.
Law plays an important indirect role in regard to social change by shaping 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 an 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 abhorable practices of untouchability, child marriage, sati, dowry etc are
typical illustrations of social change being brought about in the country trough laws.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.Law 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 regard. 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, as 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 blueprint for a new nation. The de-recognition of the 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.

Theories involved in social change

There are two theories depending on which social change can take place. They are provided
hereunder:

1. 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.
2. 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.
CHALLENGES OF SOCIAL REFORMS AND THE LIMITATIONS OF LAW

The question still remain unanswered, what to do with the social evils like caste? Madhu Kishwar,
[xxvii] is of the opinion that even though, survival of kinship and community loyalties has some
negative fallout, the existence of strong community ties provide for relatively greater stability and
dignity to the individual, than they have as atomized individuals. This in part explains why the Indian
poor, retains a strong sense of self-respect. It is that self-respect which the thoughtless insistence of
egalitarianism destroys. The support system provided by kinship ties still provide greater social
security than combined effect of all schemes that successive socialist governments have introduced to
help the poor.  Mark Tully[xxviii] writes, “one way to discredit a system is to highlight its excesses
and caste system has many, what continuous denigration of caste system has done is to add to the
sense of inferiority that many Indians feel about their own culture. It could lead to greater respect for
India’s culture and even better understanding of it, if it were to be recognized that caste system has not
been totally static, that it is adapting itself to today’s circumstances and that this has positive as well as
negative aspects. Caste system provides security and community to millions of Indians. It gives them
an identity that neither western science nor western thought has provided, because caste system is not
merely a matter of being Brahman or Harijan. It is also a kinship system. The system provides a wider
support group than family.This brief account shows that legislatures in India, in their enthuse of using
lead law approach to affect reform in India has not worked well. There can be no gainsaying of the
fact that social evils like caste system have got to be wiped out, at least humanized if possible, but that
is possible if the behavioural patterns of the people, deeply embedded in customs and traditions is
properly understood and proper help provided to them so that they may cop up with the modern
realities of life, rather than changes thrust down from above. Roscoe pound put it this way, “for many
reasons, including problems of proof, law cannot attempt to control attitudes and beliefs but only
observable behaviour”.[xxix]  For Teubner, the primary problem in laws pathological effects is
bureaucratizing social relations and moral environment and misinterpreting and so creating disruption
in contexts previously regulated by extra legal norms….. law can be effective but they must take into
consideration the context which was previously regulated by extra legal norms. “Law can be effective
but this effect may be to create uncertainty, chaos, distrust or hostility rather than to regulate
properly.”[xxx] And this is precisely what has been done by the lead law approach of law-making in
India’s Social environment. A High Court judgment[xxxi] has put it beautifully, albeit in a different
context, “bringing constitutional law and legal norms into such matters, is like bringing a bull into the
Chinashop”. What is necessary therefore is to quote Teubner again, “To find appropriate relationship
between law and other normative orders to prevent this”.There have been substantial numbers of
studies about the main factors that make social control through law effective. For example Yehzkel
Dror distinguishes between direct and indirect uses of law in promoting change, Dror accepts that
seeking social change through lead law approach is fraught with danger, but he emphasizes that law
can and does play an important, albeit indirect role in fostering social change in many ways. First it
can shape various social institutions, which in turn have a direct influence on the rate or character of
social change. For example law structuring a national education system and providing for a national
curriculum for schools influence the scope and character of educational institutions, which may help in
affecting social change. Secondly law provides institutional framework for agencies specifically set up
to exert influence change. Thus for example setting up boards, agencies of various kinds may be
resorted to charged with promoting particular policy goals and finally creation of legal duties to
establish situations in which change is fostered.American sociologist, William M Evans,[xxxii]
writing in the light of American experiences, shortlists some basic conditions, which may provide a
framework of such a system of rules that may lead to social change. First source of new law must be
authoritative and prestigious. Secondly the rationale of the new law must be expressed in terms of
compatible and continuity with established cultural and legal principles. Law in fact can be powerful
force for change, when the change derives from a principle deeply embedded in our heritage. Thirdly
pragmatic models of compliance must be identified. The underlying idea of this condition is that law
must not appear utopian but practical in its aims. Another important condition that Evans talks of is the
element of time in legislative action. But this condition appears to be rather unenlightening answer to a
complex question. The appropriate timing and strategy depends on the extent and complexity of
change that law seeks to bring about.

Both the Dharmasūtras and the metrical smṛtis claim to be the teachings of great sages who have made
dharma known to humankind. The rules contained in these texts are specific statements of the
principles of righteousness (dharma ) and world order (ṛta ) that are taught in the Veda. While the
Veda is the theoretical source for all of the law contained in the smṛti literature, very little of what is
contained in Vedic literature could itself be called "law." The exact way in which specific laws are
derived from the largely ritual, sacerdotal literature of the Vedas is never made clear; therefore, the
connection between the Vedas and smṛti is not obvious except for their shared theoretical concern for
dharma. The test of the orthodoxy of any smṛti or interpretation of smṛti was its acceptance in practice
by the educated and righteous men of the community. This is most probably the real connection
between the Vedas and the dharma literature—the dharma literature records the practice of those
steeped in the teachings of the Veda. Acceptance of a rule did not always mean that its purpose was
clearly understood by the educated and righteous men of the community. Indeed, the very obscurity of
the reason for some rules is an important interpretative device. Since dharma is not "visible" or
apparent to ordinary human beings, and since the smṛti literature teaches dharma, whenever there is
"no visible purpose" (adṛṣṭārtha ) for a rule, then that rule is of greater importance than a rule for
which there is an obvious purpose (dṛṣṭārtha ). Rules with an obvious purpose relate to the realm of the
practical (artha ) or that of the pleasant (kāma ) and are therefore of less consequence to the
metaphysical well-being of a person than rules that relate to dharma. For example, the metrical smṛti
of the sage Yājñavalkya (at 1.352) states that the king should strive to make friends because friends
are worth more than material possessions. This is a rule with an obvious purpose—the welfare of the
king. The same text (at 2.1) later states that the king must administer his judicial court impartially and
according to Dharmaśāstra. The purpose of this rule is not apparent (adṛṣṭārtha ), except that to fulfill
this rule is to engage in righteous behavior (dharma ); thus, it is a rule which is more compelling than
the earlier one advising the king to make friends. The sum of these rules, then, is that the king is not
allowed to use his position as administrator of justice to cultivate friends. Indeed, when he is in court,
he must be equally impartial to both friends and enemies (Yājñavalkasmṛti 2.2 ). This principle of the
superiority of rules relating to dharma is stated explicitly in several places in the smṛti literature (see,
for example, Yājñavalkyasmṛti 2.1).
CASE LAWS

CASE LAW 1:

Court Supreme Court of India

Full case M.C. Mehta v. Union of India
name (UOI) and Ors.
Decided 20 December 1986
Citation(s) 1987 SCR (1) 819; AIR 1987
965
Judges P.N. Bhagwati (Chief Justice),
sitting G.L. Misra Rangnath Oza, M.M.
Dutt, K.N. Singh
Decision by P.N. Bhagwati
M.C. Mehta v. Union of India originated in the aftermath of petroleum gas leak from Shriram Food
and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the infamous Bhopal gas
leak and created a lot of panic in Delhi. One person died in the incident and a few were hospitalized.
The case lays down the principle of absolute liability and the concept of deep pockets.Preliminary
objection of the defendants.There was only one preliminary objection filed by the counsel for the
defendant, and this was that the Court should not proceed to decide these constitutional issues since
there was no claim for compensation originally made in the writ petition and these issues could not be
said to arise in the writ petition. However, the Court, while rejecting this objection, said that though it
is undoubtedly true that the petitioner could have applied for amendment of the writ petition to include
a compensation claim but merely because he did not do so, the applications for compensation cannot
be thrown out. These applications for compensation are for enforcement of the fundamental right to
life enshrined in Article 21 of the Constitution and while dealing with such applications we cannot
adopt a hyper-technical approach that would defeat the ends of justice.

Order of the court.The Supreme Court made the following observation:Since we are not deciding the
question as to whether Shriram is an authority within the meaning of Article 12 to be subjected to the
discipline of the fundamental right under Article 21, we do not think it would be justified in setting up
a special machinery for investigation of the claims for compensation made by those who allege that
they have been the victims of oleum gas escape. But we would direct that Delhi Legal Aid and Advice
Board to take up the cases of all those who claim to have suffered on account of oleum gas and to file
actions on their behalf in the appropriate court for claiming compensation against Shriram. Such
actions claiming compensation may be filed by the Delhi Legal Aid and Advice Board within two
months from today and the Delhi Administration is directed to provide the necessary funds to the
Delhi Legal Aid and Advice Board for the purpose of filing and prosecuting such actions.

Thus the High Court was directed to nominate one or more Judges as may be necessary for the
purpose of trying such actions so that they may be expeditiously disposed of. Simply because the gas
caused death and many people were hospitalised.

CASE LAW 2:
Court Supreme Court of India
Full case Safai Karamchari Andolan &
name Ors. Vs. Union of India & Ors
Decided 27, March 2014
Citation(s) WRIT PETITION (CIVIL) NO.
583 OF 2003 & (C) NO. 132 OF
2012
Judges P. Sathasivam, Justice Ranjan
sitting Gogoi and Justice N.V. Ramana
Decision by P. Sathasivam

Safai Karamchari Andolan & Ors. Vs. Union of India & Ors Constitution of India, 1950 Articles
32, 14, 17, 21, 47 – Employment of Manual Scavengers and Construction of Dry Latrines
(Prohibition) Act, 1993 – Mandamus – Issuance of – Practice of removing night soil, involving human
excreta and carrying it in baskets to dumping sites for disposal – Survey conducted – Over 12 lakhs
manual scavengers undertaking this degrading human practice – About 72.05 lakh dry latrines in
existence which increased to 96 lakhs – A ‘Low Cost Sanitation for Liberation of Scavengers’ scheme
implemented in 1989-90 for elimination of this practice – A further scheme ‘National Scheme of
Liberation and Re-habilitation of Scavengers and their Dependents’ launched in 1992 – New strategy
adopted in 1993 for providing sanitary latrines and construction of same with subsidy – Then 1993 Act
enacted – Enforced in 1997 – Not implemented by all States and Union Territories – Writ for, asking
various reliefs – Discussion on Constitutional provisions – Protection of Civil Rights Act, 1955,
Universal Declaration of Human Rights, Convention for Elimination of Racial Discrimination,
Convention for Elimination of all Forms of Discrimination Against Women, considered and specific
directions issued for rehabilitation, prohibition of manual scavenging and for fully implementing the
enactment of 2013 to same effect as also Act of 1993.
Held:
The practice of manual scavenging continues unabated. Dry latrines continue to exist notwithstanding
the fact that the 1993 Act was in force for nearly two decades. States have acted in denial of the 1993
Act and the constitutional mandate to abolish untouchability.

Due to effective intervention and directions of this Court, the Government of India brought an Act
called The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 for
abolition of this evil and for the welfare of manual scavengers. The Act got the assent of the President
on 18.09.2013. The enactment of the aforesaid Act, in no way, neither dilutes the constitutional
mandate of Article 17 nor does it condone the inaction on the part of Union and State Governments
under the 1993 Act. What the 2013 Act does in addition is to expressly acknowledge Article 17 and
Article 21 rights of the persons engaged in sewage cleaning and cleaning tanks as well persons
cleaning human excreta on railway tracks.

Brief facts:
(i) The inhuman practice of manually removing night soil which involves removal of human
excrements from dry toilets with bare hands, brooms or metal scrappers; carrying excrements and
baskets to dumping sites for disposal is a practice that is still prevalent in many parts of the country.
While the surveys conducted by some of the petitioner-organizations estimate that there are over 12
lakh manual scavengers undertaking the degrading human practice in the country, the official statistics
issued by the Ministry of Social Justice and Empowerment for the year 2002-2003 puts the figure of
identified manual scavengers at 6,76,009. Of these, over 95% are Dalits (persons belonging to the
scheduled castes), who are compelled to undertake this denigrating task under the garb of traditional
occupation. The manual scavengers are considered as untouchables by other mainstream castes and are
thrown into a vortex of severe social and economic exploitation.
(ii) The sub-Committee of the Task Force constituted by the Planning Commission in 1989 estimated
that there were 72.05 lakhs dry latrines in the country. These dry latrines have not only continued to
exist till date in several States but have increased to 96 lakhs and are still being cleaned manually by
scavengers belonging to the Scheduled Castes.
(iii) National Scheduled Castes and Scheduled Tribes Finance and Development Corporation was set
up in February, 1989 as a Government company to provide financial assistance to all the Scheduled
Castes and Scheduled Tribes including Safai Karamcharis for their economic development.
(iv) The Government of India formulated a Scheme known as Low Cost Sanitation for Liberation of
Scavengers which is a centrally sponsored Scheme being implemented in 1989-90 for elimination of
manual scavenging by converting existing dry latrines into low cost water pour flush latrines and also
for construction of new sanitary latrines.
(v) With a view to eliminate manual scavenging, a Scheme known as National Scheme of Liberation
and Rehabilitation of Scavengers and their Dependents was launched in March 1992 for identification,
liberation and rehabilitation of scavengers and their dependents by providing alternative employment
after giving the requisite training.
(vi) Based on earlier experience and keeping in view the recommendations of the National Seminar on
Rural Sanitation held in September 1992, a new strategy was adopted by the Government of India in
March 1993. The emphasis was now on providing sanitary latrines including the construction of
individual sanitary latrines for selected houses below the poverty line with subsidy of 80% of the unit
cost of Rs.2,500/-.
(vii) In the year 1993, the Parliament enacted the Employment of Manual Scavengers and
Construction of Dry Latrines (Prohibition) Act, 1993 and it received the assent of the President on 5th
June, 1993. The long title of the Act describes it as an Act to provide for the prohibition of
employment of manual scavengers as well as construction or continuance of dry latrines and for the
regulation of construction and maintenance of water-seal latrines and for matters connected therewith
or incidental thereto.
(viii) The Act, which was enacted in June 1993, remained inoperative for about 3 years. It was finally
brought into force in the year 1997. In the first instance, the Act applied to the States of Andhra
Pradesh, Goa, Karnataka, Maharashta, Tripura and West Bengal and to all the Union Territories. It
was expected that the remaining States would adopt the Act subsequently by passing appropriate
resolution under Article 252 of the Constitution. However, as noted by the National Commission for
Safai Karamcharis-a statutory body, set up under the National Commission for Safai Karamcharis Act,
1993, in its 3rd and 4th Reports (combined) submitted to the Parliament, noted that the 1993 Act was
not being implemented effectively and further noted that the estimated number of dry latrines in the
country is 96 lakhs and the estimated number of manual scavengers identified is 5,77,228. It further
noted that manual scavengers were being employed in the military engineering works, the army,
public sector undertakings, Indian Railways etc.
(ix) In 2003, a report was submitted by the Comptroller and Auditor General (CAG) which evaluated
the National Scheme for Liberation and Rehabilitation of Scavengers and their Dependents. The
conclusion of the report was that this Scheme has failed to achieve its objectives even after 10 years of
implementation involving investment of more than Rs. 600 crores. It further pointed out that although
funds were available for implementation of the Scheme, much of it were unspent or underutilized. The
Committees set up for monitoring the Scheme were non-functional. It further noted that there was lack
of correspondence between liberation and rehabilitation and that there was no evidence to suggest if
those liberated were in fact rehabilitated. It concluded that the most serious lapse in the
conceptualization and operationalization of the Scheme was its failure to employ the law that
prohibited the occupationthe law was rarely used.

(x) In December, 2003 the Safai Karamchari Andolan along with six other civil society organizations
as well as seven individuals belonging to the community of manual scavengers filed the present writ
petition under Article 32 of the Constitution on the ground that the continuation of the practice of
manual scavenging as well as of dry latrines is illegal and unconstitutional since it violates the
fundamental rights guaranteed under Articles 14, 17, 21 and 23 of the Constitution of India and the
1993 Act.

We issue the following directions:

(i) The persons included in the final list of manual scavengers under Sections 11 and 12 of the 2013
Act, shall be rehabilitated as per the provisions of Part IV of the 2013 Act, in the following manner,
namely:

(a) such initial, one time, cash assistance, as may be prescribed;

(b) their children shall be entitled to scholarship as per the relevant scheme of the Central Government
or the State Government or the local authorities, as the case may be;

(c) they shall be allotted a residential plot and financial assistance for house construction, or a ready-
built house with financial assistance, subject to eligibility and willingness of the manual scavenger as
per the provisions of the relevant scheme;

(d) at least one member of their family, shall be given, subject to eligibility and willingness, training in
livelihood skill and shall be paid a monthly stipend during such period;

(e) at least one adult member of their family, shall be given, subject to eligibility and willingness,
subsidy and concessional loan for taking up an alternative occupation on sustainable basis, as per the
provisions of the relevant scheme;

(f) shall be provided such other legal and programmatic assistance, as the Central Government or State
Government may notify in this behalf.

(ii) If the practice of manual scavenging has to be brought to a close and also to prevent future
generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers will
need to include:

(a) Sewer deaths entering sewer lines without safety gears should be made a crime even in emergency
situations. For each such death, compensation of Rs. 10 lakhs should be given to the family of the
deceased.

(b) Railways should take time bound strategy to end manual scavenging on the tracks.

(c) Persons released from manual scavenging should not have to cross hurdles to receive what is their
legitimate due under the law.

(d) Provide support for dignified livelihood to safai karamchari women in accordance with their choice
of livelihood schemes.
(iii) Identify the families of all persons who have died in sewerage work (manholes, septic tanks) since
1993 and award compensation of Rs.10 lakhs for each such death to the family members depending on
them.

(iv) Rehabilitation must be based on the principles of justice and transformation.

We hereby direct all the State Governments and the Union Territories to fully implement the same and
take appropriate action for non-implementation as well as violation of the provisions contained in the
2013 Act. Inasmuch as the Act 2013 occupies the entire field, we are of the view that no further
monitoring is required by this Court.

JUDGEMENT:

P. Sathasivam, CJI.

1. The above writ petition has been filed by the petitioners as a Public Interest Litigation under Article
32 of the Constitution of India praying for issuance of a writ of mandamus to the respondent-Union of
India, State Governments and Union Territories to strictly enforce the implementation of the
Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (in short
the Act), inter alia, seeking for enforcement of fundamental rights guaranteed under Articles 14, 17, 21
and 47 of the Constitution of India.

2. We have heard the arguments advanced by learned counsel for the parties and perused the records.
Relief sought for:
3.The petitioners have approached this Court by way of writ petition in 2003, inter alia, seeking:
(i) to ensure complete eradication of Dry Latrines;
(ii) to declare continuance of the practice of manual scavenging and the operation of Dry Latrines
violative of Articles 14, 17, 21 and 23 of the Constitution and the 1993 Act;
(iii) to direct the respondents to adopt and implement the Act and to formulate detailed plans, on time
bound basis, for complete eradication of practice of manual scavenging and rehabilitation of persons
engaged in such practice;
(iv) to direct Union of India and State Governments to issue necessary directives to various Municipal
Corporations, Municipalities and Nagar Panchayats (all local bodies) to strictly implement the
provisions of the Act and initiate prosecution against the violators; and
(v) to file periodical Compliance Reports pursuant to various directions issued by this Court.

4.In the light of various provisions of the Act referred to above and the Rules in addition to various
directions issued by this Court, we hereby direct all the State Governments and the Union Territories
to fully implement the same and take appropriate action for non-implementation as well as violation of
the provisions contained in the 2013 Act. Inasmuch as the Act 2013 occupies the entire field, we are of
the view that no further monitoring is required by this Court. However, we once again reiterate that the
duty is cast on all the States and the Union Territories to fully implement and to take action against the
violators. Henceforth, persons aggrieved are permitted to approach the authorities concerned at the
first instance and thereafter the High Court having jurisdiction.

5. With the above direction, the writ petition is disposed of. No order is required in the contempt
petition.

In the case of S. R. Bommai vs. Union of India, the Supreme Court of India held that secularism is an
integral part of the Indian Constitution. The Constitution also considers Right to Freedom of Religion
as a Fundamental Right. The Uniform Civil code also suggests for citizen as Directive Principle
however, it is not constitutionally enforceable as it is it mere a moral duty.

In the case of Pannalal Bansilal v State of Andhra Pradesh, 1996, the Supreme Court held that,
enactment of a uniform civil code all at once may be counterproductive to the unity and only a gradual
progressive change should be brought about in.

In Maharishi Avadesh v Union of India, 1994, a petition was dismissed by Supreme Court seeking
Writ of Mandamus against Union of India to introduce a common civil code and thus laid
responsibility, introduced to the legislature.

CONCLUSION

The above analysis of an Indian paradigm case of trying to affect social change by a way of lead law
should make it clear that in the final analysis the law can not be seen abstracted from the social reality.
Effectiveness of law in the ultimate sense must derive from the law as an instrument of social change
working in tandem with social and cultural life of the people.  This is what has wanted throughout the
post-independence phase in India. There is no gainsaying of the fact that transformation of social
system according to the need of the times and in accordance with the modes and mores of the people is
a matter of necessity. However, this would require coordination of variety of efforts being made by
researchers all across the country for providing an alternative policy frame. At the same time one has
to keep on experimenting with the supposedly indigenous models, for which, I have put earlier,
enough of scope is available at the grass-root level. We must lay our site at the vibrant civil society
that exists in India, and also the structures in terms of Panchayati Raj Institutions which can be used by
social entrepreneurs and civil society organizations to make effective interventions and meaningful
contributions in the process of governance. We have a very encouraging social terrain, with vigilant
public opinion, vigorous press and vibrant non-governmental organization sector, which can be used
for making new experiments of laws in the governance process at the grass-root level. We also have
unutilized and under-utilized potential of millions of youth which can be used for making effective
improvements in the developmental administration. However, what we lack is the political will to
make use of opportunities available. What is needed is a kind of new dynamic of developmental
politics to grow in the country and there we have the challenge well chalked out for willing social
entrepreneurs to make use of and conduct experiment in the supposed models of indigenous law. What
would be the shape of such experimentation is something which would require another full-fledged
research paper. The only thing that can be kept in mind is there is a scope available and there is also a
need for conducting experiments at the grass-root level of our political process in trying to balance the
‘lead law’ and ‘lag law’ approaches in the process of transformation of the social organism. This
balancing between instrumentality of law and the folk ways and mores of the people or between lead
law and lag law would really pave the way for real justice in action preparing the fundamental
conception of a long lasting political order in India. Law is a system of rules and guidelines which are
enforced through social institutions to govern behaviour, wherever possible. It shapes politics,
economics and society in numerous ways and serves as a social mediator of relations between
people.If the harm is criminalized in legislation, criminal law offers means by which the state can
prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the
protection of human rights and the election of political representatives. Administrative law is used to
review the decisions of government agencies, while international law governs affairs between
sovereign states in activities ranging from trade to environmental regulation or military action. The
legal response to a given social or technological problem is therefore in itself a major social action
which may aggravate a given problem or alleviate and help to solve it. A systems perspective must
acknowledge that social problems are interconnected rather than isolated. People should be advocates
for radical perspectives defensible on both psychological and political grounds, in keeping with values
such as dignity, autonomy, equality, and justice. At the end of the discussion we can conclude that the
law and religion are integral part of each other and they are interdependent on each other. Religion is
the very basis for formulation of the law anywhere in the world, as seen, from ancient to modern
world. It is not just proved by Hindu laws but also evident from several other personal laws and legal
histories.

SUGGESTIONS
The researcher concludes that social problems are interconnected rather than isolated and law is a
mirror to know how people are related to one another. Effective implementation of law as an
instrument or device of social change should work in tandem with social and cultural life of people of
India. Transformation of social system according to the need of the times and in accordance with the
modes and mores of the people is a matter of necessity. A striking balance between instrumentality of
law and folkways and mores of the people would really pave way for real justice in action and thus
leads to empowerment of the society. 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.
REFERNCES

Bibliography:

 M.A.Eng, (Meerut University);

 LL.B. (Poona University);
 LL.M.  (Constitution)  (M.D.S. University, Ajmer);
Ph.D. ( Rajasthan University Jaipur);
 LL.M. (Legal Philosophy) European Academy of
Legal Theory, Brussels, Belgium;
 Professor, Ram Manohar Lohiya National Law
University, Lucknow, Uttar Pradesh.

Weblioghraphy:

 Wikipedia
 Google.com
 LegalServices.com
 Casemine.com