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To bring Social change is the responsibility of the Law. And in Indian concern such is the truth. Religious country like India which is suffering from the liability of the traditions needs law as a means of social change.

Law as an Instrument of Social Change Problem is inherent in the effort to legitimate human behaviour, which is more a product of child rearing practices of a given society than that of legislation. Laws try to regulate only those behaviour which are primarily in public domain. Though at the same time laws sometimes interferes with private domain also but are generally spare. There is always a fear in the mind of law framers that law does not becomes redundant so law generally withdrawn itself from the areas where, it is not required, as in the case of consensual sex, which law initially tried to regulate. But slow and surely, it is withdrawing itself from this area. Preamble of the constitution of India also recognises these regulations and limitations as it writes “…promote fraternity among…” since law cannot impose it. By * Jasper Vikas George “There is nearly always a certain difference between actual social behaviour and the behaviour demanded by the legal norm; the existence of a certain ‘tension’ between actual behaviour and legally desired behaviour (and between legally required behaviour and morally demanded behaviour) belongs to the characteristics of law in all societies (Kelson, 1945, 436-437) and does not by itself signify the existence of a lag between law and social change. A lag appears only when there is more than a certain tension, when the law does not in fact answer the needs arising from major social changes or when social behaviour and the sense of obligation generally felt towards legal norms significantly differs from the behaviour required by law. In other words, while a certain difference between actual behaviour and legally required behaviour can be found in all societies, the concept of lag applies to law and social change in dynamic situations, after either social change or changes in the law occur and no parallel changes and adjustment processes take place in law or society respectively” . Along with religion and morality, law is one of the strongest regulatory measures of social control. The law, not only controls human interactions, but brings a change in the society. In the early stage of the civilization, when the culture of the human beings is at progress, the need of state requires, because of the invention of the art of cultivation. The art of cultivation of land is the bench mark in the evolution of human progress. Now people started living in the clans and classes. This was the time when the need of rules and regulations felt for the protection and perseverance of ones group by other group. Initially the work of the group was to protect ones class of group from that of the other and internal maintenance of peace. The introduction of laissez faire and industrial revolution led to the development of elite rich class and the exploitation of the weaker sections of the society. It is at this stage the revolution for the welfare of the weaker sections of the society felt. The journey from Magna Carta of 1215 to the Bill of Rights of the 18th century provides identification to the ‘Individual’. The American war of Independence, French revolution, etc. gave new look to the object of law as a whole. The law changes its form from being Police State to the protection and welfare of the individual. Law as an Instrument of social change in India The law in India profoundedly used as an instrument of social change. The social change in Colonial India was done with the help of the social movements started by the famous luminaries of the contemporary era such as Raja Ram Mohan Roy, Swami Dayanand, Swami Vivekananda, Mahatma Gandhi, etc. After the independence of India, this work is handled by the Grundnorm of India i.e., Constitution of India, 1950. Constitution of India has provided under Part III, certain Fundamental Rights for the individuals against the state. While under part IV of the constitution, directive principles are provided for the state to promulgate their policy for the welfare of the people according their best means. “As regards the role of law in bringing about a social change, there are two views. According to one view, the essential function of law is to reinforce the existing models and to provide a uniform procedure for the evaluation of human conduct and punishment for deviance from the existing rules. In other words, the main function of law according to this view is social control. According to the other view, law could be more dynamic. It has not only the function of social control but it has also to bring about a social change by influencing behaviour, beliefs and values” . In dynamic and well advanced societies the law has fewer roles to play. It is in ‘developing societies’ as India where law has to perform the role of instrument of social change. The institutionalising of social change is the process of modern capitalistic age. There are two interrelated processes involves in the social change. In the first place, Social change is only possible with the help of the enactments. The social change in modern society is institutionalised. Social change is possible through two means. Firstly, through revolution as was happened in the former USSR in 1917. Secondly, through peaceful and more legitimized incremental change as was happened in India in the year 1950, after the enactment of constitution of India. In developing societies, the new pattern of behaviour manifesting new social values is coming across because of welfare oriented enactments. These new Acts provides stringent punishment for the violation of rules enumerated in it. It the institutionalization is successful, the new values are internally inherited by the individuals. “The conception of the state as the guarantor, and in some sense the real personality of the individual is extended and developed in the philosophy of Hegel. In his view men enjoy as members of society a freedom which is more real than that which they abandoned when they quitted their hypothetical lawless state of nature to enter society. This freedom, which became possible only in society, is an externalization or objectification of all that is highest in the conception of freedom in the individual’s heart, a conception which but for society would remain unrealized” . The internalization made institution of social change a success. Without which mere codification of laws will not have any social value at all. In the words of J. Habermas , “the legitimacy of the political order of capitalist society is related to ‘the social-integrative preservation of a normatively determined social identity’”. After the independence of India, the first task before the legislature is to provide the enactments to fulfill the goals of the constitution makers. To improve the status of the women, children, disabled persons, environment, dalits, etc., the legislature comes up with a policy of incremental change. Social reformers of the Pre-independence India and the contemporary women’s movement led their way only always with the help of the law. The Abolition of the Sati Act, Abolition of the Child Marriage Act, etc., were enacted with the initiation of the social reformers of their times. The exploitative traditions of the Hindu Varna system, were being abolished one by one either with the enactment of the constitution of India or with other laws for the welfare and the protection of the weaker sections of the society. There are two important ways through which the law can be used as an instrument of social change. One is through the enactments by the legislature and the other by way judicial activism in the form of Public Interest Litigation. Below, we will discuss how the law has been used as an instrument of social change for the upliftment of the vulnerable sections of the society in India such as Women, Children, Dalits, Disabled persons etc. Affirmative action by the Constitution of India Constitution makers were aware of the pathetic conditions of the women, children and backward classes in particular. The age old Indian tradition and the religious texts had made their life worse than anywhere in the world. They are subjugated time immemorial. The constitution makers kept this in view while coming with the bulky sacrosanct elephant i.e., The Constitution of India, 1950. There are certain special provisions which are interpreted specially for the cause of the women, children and backward classes in particular. Under Article 15 (3) and Article 16 (4) of the Constitution of India, there is a special provision for the welfare of the above classes. Article 15 provides legislature a power to make favourable laws in favour of women and children. Further under Article 16 (4) of the constitution of India reservation is provided in public employment in favour of the weaker sections of the society. Yusuf Abdul Aziz case (1954) favours the mandate in favour of the women and children. This affirmative action on the part of the constitution makers proves boom for the weaker sections. The lag between the social reforms and the law is slowly withering away with the help of the law. Below we will discuss the use of law as an instrument of social change particularly in Indian context. PIL as an instrument of social change PIL is the product of judicial activism. PIL has provided the speedy justice to the common man of the Indian society. The relaxation of the locus standi rule makes it easier for the common man to access justice. The integral yoga of law and society is necessary to attain the orderly human progress. By creating a new regime of human rights by expanding the meaning of fundamental right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement through PIL. . In Bandhu Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India, court banned smoking in public places. In a landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14, Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v. State of Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work. PIL has become an important part and parcel for delivering justice to the common person. It is decreasing the lag between the law and the social change. 1. Women The caste system of the Indian past and the patriarchal social system made the condition of the women vulnerable. Christian missionaries and social reformers of the nineteenth century were contributed a lot in finding the prevalent lacunas of the Hindu society. Abolition of Sati Act is the byproduct of the work of the Raja Ram Mohan Roy towards the pathetic condition of the Women. Child Marriage Restraint Act, 1929 is the other enactment which restraint the early marriage of the girl without her consent. The condition of the Hindu Women improved considerably when the Pandora of enactments explored from the enactment of Hindu Marriage Act, 1955, followed by Hindu Adoptions and Maintenance Act, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act 1956. This is the first time when the Hindu woman has a say in the matter of her marriage. Minimum age is fixed. Hindu marriage is made monogamous in nature. Section 19 (1) (iiia) was added in Hindu Marriage Act, 1955 in the year 2003 to provide unnecessary harassment to the Hindu women by providing Independent Marriage women domicile. To completely stop sati parliament comes up with the addition of rules in 1988 in the Commission of Sati (Prevention) Act, 1987. Dowry prohibition Act, 1961 was enacted to completely wither away with the evil practice of Dowry prevalent in the Indian society. To provide better protection to the marriages held outside the country legislature comes up with the Foreign Marriage act, 1969. Immoral Traffic (Prevention) Act, 1956 was enacted to stop trafficking of the women. Indecent Representation of Women (Prohibition) Act, 1986 was enacted to preserve the dignity of the women. Medical Termination of Pregnancy Act, 1971, and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 were enacted to protect another dreadful practice prevalent in the Indian society i.e., Female Infanticide. Equal Remuneration Act 1976 was enacted to provide equal pay for equal work to the women. Other Industrial laws such as Minimum Wages Act and Maternity Benefit Act were enacted to provide better facilities for the women to live with dignity. Constitution of India is there with provisions under Article 15 and 16 to provide reservation to the women in different sectors of life. The condition of Muslim women has been improved considerably after the enactment of The Muslim Women (Protection of Rights on Divorce) Act, 1986. Judiciary is also putting the horse of dynamism going. By Vishaka case, court comes with the guidelines and directions to stop exploitation of women at working places. In Domestic Women case court provide compensation to the rape victims. Supreme Court in Sarla Mudgal case held that the converted spouse has to dissolve the marriage under the Hindu Marriage Act before converted into the Muslim religion. The court interpreted the penal laws such as section 498A, 375, and 376 of the Indian Penal Code etc in such a way to make it women friendly so that the harassment they are facing should be curtailed to some extent. Despite constitutional guarantees of gender equality and many laws, today women in India suffer greater poverty of education, health and nutrition, and greater lack of access to economic, political and legal opportunities, in relation to their male counterparts as well as to women around the world. 2. Children The prevalence of the child labour is the fact of the day. Law is used an instrument to change the socio-economic conditions of the children’s of the country. Number of international conventions had been passed since the existence of the UNO. In the India, Child Labour is completely banned. But still the child labour is prevalent in the fire crackers factory, carpet industry, and domestic servant group. Constitution is comes up with an amendment by which Article 21A has been added to the constitution of India. It talks of Right to education as fundamental right. Court and legislature comes up for the rescue of children against sex exploitation. Juvenile Justice (Care and Protection of Children) Act, 2000 has been passed for the welfare of the juveniles. Law certainly has been used as an instrument of social change for the child. The rehabilitation of the children’s of the sex workers is also able to possible only because of law. Much is still left to do, but the initiation is already on. 3. Dalits The transformation of Indian society from caste and feudal society to casteless and classless society is the work done by the Constitution of India. Parliamentary democracy comes up with the Adult Franchise which gives away the supremacy of the feudal society. The prominent Indian concept of Untouchability was withered away by the abolition of Untouchability Act. “The reservation of seats in Parliament and state legislatures for SCs and STs, and jobs in the government were also important.” “The Constitution of India contains a number of provisions for the removal of various disabilities and discrimination against disadvantaged groups. These provisions relate to the prohibition of restrictions of access to public places, reservation of seats in public employment, abolition of Untouchability (Article 17), restriction of traffic in Human beings and forced labour (Article 23), prohibition of child labour (Article 24) and preservation and protection of educational and cultural rights of minority communities (Articles 29, 30)…To improve the status of Scheduled castes and Scheduled tribes, the government, by protective discrimination policy, has laid down three kinds of arrangements for them. First, there has been reservation of seats for them in Parliament (Article 330) and State legislatures (Article 339). Second, there has been reservation of jobs for them in government and semi-government services [Article 16 (4)]. Third, seats have been reserved for them in the higher educational institutions such as colleges and universities for their social and educational advancement [Article 15 (4)]” . 4. Bonded labour Constitution of India clearly abolishes the practice of bonded labour in any form. It is such an institution which is typically available in Indian conditions. Indian legislature later on realise that the above provision proved fruitless in view of lack of proper machinery to check the status of the abolition of bonded labourers. This led to the enactment of Bonded Labour Abolition Act, 1976. The District magistrate was duty bound to check the status of the prevalence of bonded labour. Judiciary took the initiative in the much famous Bandhu Mukti morcha Case, where it held that it is the state duty to look after the matter seriously. And not only freed the bonded labourers but it is the duty of the state to properly rehabilitate them otherwise the position will be much wore than before. 5. Environment The right to live with human dignity is the need of the modern civilization. Modern welfare approach requires the right to clean environment as the right of every individual. In series of enactments such as Water act, Air Act, Noise pollution Rules, Environment Protection Acts, etc, the right to clean environment is incorporated. Supreme Court in series of M.C. Mehta cases upheld the right to clean environment as a fundamental right of every individual. The judiciary has time to time issues orders for the cleaning of environment. So law is used as not only as an instrument of social change but it also used to broaden the concept of right to live with human dignity. 6. Poverty By assuring employment guarantee and the equal pay for the equal work the law has revolutionized the whole discriminatory labour laws. The equal remuneration Act, minimum fixation of hours, Minimum wages Act were passed to go away with the poverty as a whole. Judiciary also dynamically worked for the removal of the poverty and hunger deaths. The court had directed the state governments to look after the problem of hunger deaths and the poverty. 7. Mentally retarded persons Mentally retarded persons are such a category who cannot express and talk of their rights as such. That’s why legislature had come up with the enactment Mental Health Act which was primarily enacted to look after the mentally retarded persons as such. Supreme Court had directed time to time to look after their rights by issuing interim orders. 8. Disabled Persons A disabled person is the other branch which needs considerable attention from every nuke and corner of the country. In India, the constitution has provided fundamental rights to every one equally irrespective of caste and colour. Disabled persons are the sufferer because there are laws made according to the abled persons. So it’s a completely ignored class as such. Though late but still at least the parliament of India comes with the laws for the welfare of the disabled persons. The enactment of Persons with Disabilities (Equal Protection of Rights and Full Participation) Act, 1995; National Trust Act, 1999 and The Rehabilitation Council of India Act, 1992 are the steps towards the welfare of the disabled persons. In Francis Coralie Mullin v. U. T. of Delhi , the concept of life was broadened and it was observed that right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as facilities for reading, writing and expressing oneself in diverse forms, in addition to the bare necessities of life such as adequate nutrition, clothing and shelter over head. In Jai Shankar Prasad v. State of Bihar , the appointment of the respondent was challenged because he was blind. Supreme Court thwarted the challenge because the respondent was performing tremendously well and faring better than others. However, in S.B.I. v. G.K. Deshak the Supreme Court did not approve of the High Court, overruling the opinion of the medical specialist and ordering the absorption of the respondent on humanitarian grounds. In Javed Abidi v. Union of India , the question of the absence of ambulifts at airports and aisle chairs in aeroplanes came before the court. These lapses, the petitioner contended, caused him to be physically lifted up first to the aeroplane and then to his particular seat, an exercise, which was an affront to his dignity and an infringement of the right, granted to him under Section 44 of the Persons with Disabilities Act. Section 44 requires establishment in the transport sector to adapt rail compartments, buses, vessels, and aircrafts in such a way as to permit easy access to persons with disabilities. This obligation, however, has to be fulfilled by the authorities within the limits of their economic capacity and development. The Supreme Court made its ruling in this case in continuous awareness of this limitation. Consequently, it was not willing to enunciate the right to access in the absolute terms. At the same time, it did not agree to the government using financial constraint as a shield against all disability related duties. In a kind of compromise between the State and the petitioner, ambulifts were acquired for all major airports. It also agreed to provide aisle chairs in the aeroplanes .Recently Supreme Court in Union of India v. Sanjay Kumar Jain , held that sub-section (1) of section 47 of the Persons with Disabilities Act 1995 in clear terms provides that there cannot be any discrimination in government employments and no establishment shall dispense with or reduce in rank an employee, whatsoever, during his service. Further sub-section (2) in crystal-clear terms, provides that no promotion shall be denied to a person merely on the ground of his disability. Conclusion and suggestion Law like society must be dynamic and it must change as society changes. To make law more effective and instrument of social change, it is necessary to update the law periodically as per the social requirements. The structural and functional model of the Gabriel Almond and Powell should be effectuated with more serious concern so that the societies feed back will easily be come to the law makers in power. The public opinion should reach the law makers smoothly and without distortions so that they make law accordingly. There must be check on the discriminatory laws. The progressive and dynamic interpretation of law should be done the judiciary. The interpretation of judiciary of the International conventions liberally is the other dynamic factor of Indian Judiciary. The Gramophone case held that the convention which is not in conformity with the municipal law can be implemented by the Indian municipal law as such. Reform which is imposed upon people through a law cannot be effective; only education, knowledge and human values can bring about the desired change. © Copy right reserved with the author Notes *Jasper Vikas George, LL.B, pursuing LL.M, Faculty of Law, University of Delhi, Advocate, Delhi High Court, New Delhi, Res. 69, Antriksha Apartments, H-3, Vikas Puri, New Delhi – 110018, Off. G & G Associates, G-2/2, Ground Floor, Sector – 16, Rohini, New Delhi - 110085 1. Dror, Yehezkel, “Law and Social Change”, Tulane Law Review, Vol. 33 (1959), pp. 749-801 2. Singh, S. C., “Law as Instrument of Social Change”, Indian Bar Review, Vol.9 29 (2) 2002, p. 235-236 3. Joad, C.E.M., “Introduction to Modern Political Theory”, pp. 11-12 4. Toward a Rational Society: Student protest, Science and Politics, 1971 5. Supra Note No. 2 at p. 239. 6. Supra Note No. 2 at pp. 239-240. 7. AIR 1981 SC 746 8. JT 1993(2) SC 356 9. 1993 Lab IC 1995 10. AIR 1999 SC 512 11. Id. 12. (2004) 6 SCC 708

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