Law as an Instrument of Social Change

Law is a dynamic instrument that societies use to adjust human relations and eliminate social tensions and conflicts. It serves as a mechanism for delivering justice, which is fundamental to creating peace and progress within a society. The ever-changing nature of society necessitates changes in the law, which can be achieved through amendments to statutes and acts. Similarly, the interpretation of laws by the judiciary reflects the evolving needs and values of society.

Understanding Law as an Instrument of Social Change

Law serves as a mechanism for regulating behaviour and resolving disputes in society. However, its role extends beyond mere regulation to actively promoting social justice, equality and empowerment. In India, where social stratification and inequalities have been deeply entrenched, the law has been a powerful tool for challenging discriminatory practices and promoting inclusivity.

How  Law as an Instrument of Social Change in India

To illustrate the instrumental role of law in social change, it is essential to examine key transformations that have occurred in India. Change is inevitable and understanding these changes demonstrates the dynamic nature of societal evolution.

Abolition of Sati System

The Sati system, an ancient Hindu custom where widows were expected to immolate themselves on their husband’s funeral pyre, was formally abolished in the Bengal Presidency on December 4th, 1829, by Governor Lord William Bentinck. This act was made illegal and punishable under criminal law.

Although the ban was initially challenged, it was finally implemented in 1832. While the abetment of Sati was not explicitly listed as a special offence under the Indian Penal Code (IPC), the judiciary has ruled that the abetment of Sati is akin to the abetment of suicide, punishable under section 306 IPC. The Sati Prevention Act of 1987 was introduced to address the resurgence of Sati cases in regions like Uttar Pradesh, Madhya Pradesh and Rajasthan between 1980 and 1983.

This legislation made the abetment of Sati punishable by death sentence. Today, the Sati system is virtually eradicated in India, demonstrating the law’s significant role in transforming societal customs.

Maintenance Rights for Muslim Women

In the landmark case of Mohd. Ahmad Khan v. Shah Bano Begum (AIR 1985 SC 945), the Supreme Court ruled that if a divorced Muslim woman is unable to maintain herself after the period of iddat (post-divorce waiting period), she is entitled to maintenance under section 125 of the Code of Criminal Procedure (CRPC), 1973.

This decision sparked controversy and led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Supreme Court clarified that the CRPC provisions apply to all religions, including Hinduism, Islam, Christianity and Zoroastrianism, emphasising the secular nature of these laws.

Free Education as a Fundamental Right

The Supreme Court of India has ruled that the right to education is a fundamental right under Article 21 of the Constitution. In the case of Mohini Jain v State of Karnataka, a five-judge bench held that the right to education is intrinsic to the right to life and personal liberty guaranteed by Article 21. However, the right to free education is specifically available only to children until they reach the age of 14 years.

Beyond this age, the state is obligated to provide free education based on its economic capacity. Subsequently, the legislature amended the Constitution to introduce Article 21A, which made the right to education free and compulsory for children between the ages of 6 and 14 years.

Introduction of Public Interest Litigation (PIL)

The Supreme Court has adopted a broader approach to locus standi, allowing public-spirited individuals to bring matters of general or group interest before the courts, even if they are not directly affected. For example, if individuals are unable to approach the court due to economic constraints, a public-spirited person can file a PIL on their behalf. This approach has enabled greater access to justice for marginalised and disadvantaged groups.

Right to Information (RTI)

The right to information is a crucial instrument of law for social change. The Supreme Court has upheld that the freedom of speech and expression, as guaranteed by the Constitution, includes the right to receive and impart information. This was affirmed in the landmark case of State of UP v Raj Narain (1975), where the court recognised the importance of transparency and accountability in governance.

Compulsory Registration of Marriage

Marriage laws in India are governed by personal laws. While the Christian Marriage Act of 1872 mandates the compulsory registration of valid marriages, Hindu law originally left registration as an option. However, the Supreme Court of India has ruled that marriage registration is mandatory across the country, irrespective of religion. This directive ensures that marriages are recorded in a secular manner, enhancing legal recognition and protection for couples.

Law Relating to Prisoners

The philosophy behind laws relating to prisoners emphasises reformation over punishment. The idea is that since criminals are part of society, efforts should be made to reform them rather than simply punishing them. Prisoners are entitled to all constitutional rights, including the right to read and write books, use of parole and release on bail, ensuring that their fundamental rights are protected even while incarcerated.

Abolition of Polygamy

Polygamy, the practice of having more than one spouse simultaneously, was prevalent in India with few restrictions. Under Islamic law, a man could have up to four wives, but the Indian Penal Code of 1860 made bigamy (marrying another person while already married) a specific offence under section 494, except where permitted by custom. The Indian Christian Marriage Act of 1872 also prohibits polygamy among Christians, reflecting a broader societal move towards monogamy as the accepted norm.

Prohibition of Child Marriage

During colonial times in India, child marriages were common, with spouses often unaware of the implications of marriage at such a young age. To address this issue, laws prohibiting child marriage were introduced. These laws recognise that children are not capable of understanding the complexities of marriage and aim to protect them from early and often harmful marital relationships.

The Child Marriage Restraint Act of 1929

This act aimed to restrict child marriages rather than abolish them altogether. It defined a child as a person who, if male, had not completed 21 years of age and if female, had not completed 18 years.

The Act was introduced after the recognition that all religions prohibit child marriage to some extent. While the Act did not completely eradicate child marriage, it marked a significant step towards recognising the harmful effects of early marriage and seeking to prevent them.

Abolition of the Slavery System

To eradicate slavery from India, several legislative measures were introduced to criminalise and penalise the practice. Section 370 of the Indian Penal Code (IPC) makes it an offence to import, export, remove, buy, sell or detain a person as a slave, punishable by imprisonment of up to seven years and a fine. Similarly, Section 371 of the IPC imposes penalties on those who habitually engage in slave-related activities.

Furthermore, Article 23 of the Indian Constitution prohibits trafficking in humans and forbids bonded labour. The Government of India enacted the Bonded Labour System (Abolition) Act, 1976, to eliminate bonded labour practices. Despite various efforts to address bonded labour, the Bonded Labour System (Abolition) Act has been the most effective measure in combating this issue.

Elimination of Child Labour

The Employment of Children Act, 1938, was enacted to prohibit the employment of children below the age of 15 years, recognising the importance of safeguarding their rights and ensuring their proper physical and mental development.

Law and Prostitution

Prostitutes are often victims of societal circumstances, surrounded by criminal elements such as kidnappers, pimps, drug pushers and murderers. Recognising this, the Supreme Court issued directives to the government and social organisations to take appropriate steps to rehabilitate prostitutes and their children, emphasising the need for compassion and support rather than punitive measures.

Recognition of Live-in Relationships

The Supreme Court has acknowledged that while sexual contact should ideally occur within the confines of marriage, there is no statutory offence for consensual sexual relations between unmarried individuals. The court has recognised that live-in relationships between consenting adults do not amount to any offence, even though they may be viewed as immoral by some.

Public Interest Litigation (PIL)

PIL has been instrumental in enhancing access to justice for marginalised and disadvantaged groups in India. By relaxing the traditional concept of locus standi, PIL allows public-spirited individuals to approach the courts to address issues of public or group interest, even if they are not directly affected. This has been a crucial tool in promoting social justice and holding authorities accountable for their actions.

Laws for Rape Victims

The Criminal Law (Amendment) Act, 2013, was enacted in response to widespread protests following a brutal rape case in Jammu and Kashmir. The Act introduced stricter punishments, including the death penalty for repeat offenders, for crimes of violence against women and girls. Additionally, compensatory measures were introduced for rape victims, recognising the need for support and rehabilitation.

Female Infanticide

To address the issue of female infanticide and sex-selective abortions, the Government of India enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, which banned the use of prenatal sex determination techniques. This law aims to protect the lives of girls and ensure gender equality.

Conclusion

Law has been and continues to be a powerful instrument of social change in India. Through legislative reforms, judicial activism and the proactive role of the legal system, India has made significant strides in addressing social inequalities and promoting inclusivity.

However, there is still much work to be done and concerted efforts are needed to ensure that the law remains a force for positive change in Indian society.