Open Access Research Article
ROLE OF LAW AND JUDICIARY IN SOCIAL TRANSFORMATION IN INDIA BY: NARAYAN DNYANOBA SASTE
Published Paper
Article Details
ROLE OF LAW AND JUDICIARY IN SOCIAL
TRANSFORMATION IN INDIA
AUTHORED
BY: NARAYAN DNYANOBA SASTE
ROLL No.:01
CLASS:
LLM-II
ACADEMIC
YEAR: 2023-24
1.0 Abstract :
Any deviation from the
accepted or established way of life is referred to as social transformation.
The phrase ‘social change’ describes alterations to society as a whole.
According to Maclver, society is a "network of social interactions."
These social interactions alter as a result of social change. Law and social
transformation are two very different ideas that place a strong emphasis on
social problem studies, changes in those problems, and their resolution through
judicial and legislative processes. According to the adage “Law Changes
Society,” society must adapt to the law's requirements. When an anomaly occurs,
it is taken before the judiciary, which then applies the principle of the rule
of law to alter the current practice of law. Law has historically been seen as
a vehicle for enacting social change.
1.1 Introduction:
Introduction Every school of law has
an underlying tenet or myth, and the myth of sociological jurisprudence is that
it recognises, conciliates, and strikes a balance between conflicting social
and private interests in society.1
However, the issue is that there is no standard by which one interest may be
chosen above another. In addition, no other school of legal thought can be
utilised to explain and speed the process of change that is unavoidable. Indian
society has changed over time from a culture ruled by Smrithi, Sruti, Dharma,
and other customary law to a society that during the colonial period adopted
western concepts of law and authority.2
Moreover, the Constitution is built on rights and progressive legislation.
Indian society has changed since the end of colonialism, including the
codification of religious laws and affirmative action. By considering the law
as a tool of social engineering, it is possible to examine and comprehend the
sociological jurisprudence's contribution to India's social transformation. The
significance of researching the sociology of law in the Indian context has been
emphasised by Professor Upendra Baxi. 3
One of the key tools that could
affect social transformation has long been considered to be the law.
-----------------------
1 O. Chinnappa Reddy, “A Need for a
Socialist Jurisprudencea” SCC 4 (1987).
2 Ishwara Bhat P, Law and Social
Transformation 83 (Eastern Book Publication 1st Edn. 2009
3 Baxi Upendra. (1986) Towards a
Sociology of Indian Law Satvahan Publication.
Many academics have endorsed the idea
that the rule of law has unifying potential and can be used to improve social
cohesiveness.,4 as a method for achieving uniformity
among a diverse population with sociocultural differences. Although there are
many ways to change and reform society, changing society through the law is
perhaps one of the most efficient and secure ways to do so.
2.0 Definition of Law and Social Change:
2.1 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 definite, 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”.
B.N. Cardozo says “Law is a principle or rule of conduct so established as to justify a
prediction with reasonable certainty that it will be enforced by the Courts if
its authority is challenged.”
According to Max Weber ‘Law is an order, the validity of which is guaranteed by
the probability that deviation will be met by a physical or psychic sanction by
a staff specially empowered to carry out this Sanction”
According to Roscoe Pound, “Law is an authoritative canon of value laid down by
the force of politically organised society.”
Austin defined
law as “the Command of the sovereign, having sanction behind it.”
2.2 Social Change:
Lundberg
defines “Social Change refers to any modification in established patterns of
inter-human relationship and standards of conduct.”
Vidya Bhushan
and D.R. Sachdeva observed, “Change is the law of nature what is today shall be
different from what it would be tomorrow. The social structure is subject to
incessant change … Society is an everchanging phenomenon, growing, decaying,
renewing and accommodating itself to changing conditions and suffering vast
modifications over time.”
---------------------
4 Fitzpatrick Peter. (2001) Modernism
and the Grounds of Law Cambridge University Press.
According to Mazumdar, H.T.- “Social change may be defined as a new fashion or
mode, either modifying or replacing the old, in the life of a people, or in the
operation of a Society.”
According to Davis, “Social change is meant only for such alterations as occur
in social Organisation, that is, structure and functions of Society.”
M.D. Jenson,
“Social change may be defined as modification in ways of doing and thinking of
people.”
Anderson and Parker, “Social Change involve alteration in the structure or functioning of
social forms or processes themselves.”
Before we move on to the in-depth
analysis, a functional definition of social transformation must be reached.
It's important to distinguish between social change and social transformation
for this reason. Social change is defined as a non-repeatable change in the
accepted social norms of behaviour.5 The
established social norms, social roles, and social relationship patterns should
ideally shift in order to further develop social transformation.6 But only a significant social change that affects many
people would be considered a social transformation.7
The transformation in technology,
agriculture, dairy, farming, science etc. might not be enclosed within the term
‘social change.’ Social change is proscribed to alterations in the field of
social relationships. Social relationships are social processes, social
patterns and social interactions.
2.3 Law and Social transformation
Except for the rule of change,
everything changes in this world. This rule does not apply to the life of a
nation or a socio-political system. They are fundamentally live, organic, and
dynamic
systems. Political, social, and
economic factors are always changing. Social mores and values
shift with time, causing new issues
and changing the face of old ones. This shift is not always in a positive
direction; there are always going to change that is unwelcome and generally
negative in nature.
That does not appear to be the case
based on how law and government have been organised during the last two
centuries. The law, in its broadest meaning, and the entire legal system with
---------------------
5 Supra Note 2 at 14.
6 Roger Cotterrell. (2007) The
Sociology of Law: An Introduction Oxford: University Press
7 Singh Yogender. (1993) Social
Change in India: Crisis and Resilience South Asia Books.
its institutions, rules, procedures,
and remedies, is society’s attempt to manage and direct this transformation
process through the state. This logic places the state and legal institutions
at the centre of all social discipline. In theory, the sovereign legal
authority, can legislate on any subject and exert control over any
transformation process within the state. Indeed, it is assumed that legal innovation
can effect social change under a highly centralised political system with
superior technology and communication apparatus.8 The law, according to Roscoe
Pound, was a tool for social engineering. This viewpoint is based on the
assumption that social processes are subject to conscious human control, and
that the instrument through which this control is to be achieved is the law.
Theorists of the 19th century
emphasised the importance of legislation in explaining social transformation.
Henry Maine explained how society changed by switching from the status to the
contract. According to Durkheim, the kind of law is an indicator of the type of
society, and changes in the law are a reflection of the way society is changing
and its nature. Marx perceived the law as an impediment to class struggle and
revolutionary social transformation since it was inextricably linked to
capitalist economic relations and thus inevitability, according to Weber’s
typology of law and legal theory.9
3.0 Role of law in social transformation
The impact of British colonial rule
on Indian society is prominent in any discussion or discourse on social
transformation. British control, Christian Missionaries, and English education
all contributed significantly to the transformation of Indian society. At this
point, it’s important to distinguish between the effects of pre-capitalism
colonialism/imperialism and colonialism throughout the capitalist era. Because
British colonial power was founded on the capitalist system, it was able to make
fundamental changes to the economic systems of its colonies, allowing it to
expand.
During the colonial period,
Anglo-Saxon rules were imposed on Indian society. As a result, Smriti, Sruti,
Dharma, and other forms of customary law have eroded. Though acceptance of
---------------------
8 Falk Moore Sally. (1993) Law as a
Process: An Anthropological approach Routledge and Kegal Paul, London.
9 L. Roach Anleu Sharyn. (2010) Law
and Social Change SAGE: Publication.
personal laws was the colonial administration’s
policy, it was done out of respect for India’s culture and tradition, as well
as a conflict-avoidance mechanism, due to the unexpected application of an
alien law. However, with the employment of justice, equity, and good conscience
as a residuary source of law, British law had a backdoor entry into the Indian
legal system.10
Furthermore, many customaries
practises could not be proven and were not enforced due to the colonial court’s
stringent standard of proof.11 Another element
that has been suggested as a reason for the invasion of British law into India
is the colonial court’s consultation with pundits and maulvis, as well as the
severe implementation of the stare decis. The colonial administration also
imposed legal codification in India, both criminal and civil, based on the
Anglo-Saxon paradigm.12 The Penal Code, the Criminal
Procedure Code, the Code of Civil Procedure, and the Evidence Act are all
examples of this. An essential aspect to note here is that all of these
statutes introduced English legal notions into India.
The colonial legal system cannot be
divided into a consensus or conflict model because the people’s participation,
perception, or need was not a major issue for the legal system at the time.
However, it is also impossible to exclude any laws enacted during colonial rule
from the scope of sociological jurisprudence. The British administration was
primarily concerned with enacting legislation that would aid in the formation
of a pan-India governance system.13
However, certain laws were enacted as a result of public opinion.14 This includes issues such as sati and laws against child
marriage. This shows that people’s needs are reflected in public opinion.
3.1 Abolition of slavery and bonded labour system:
The Indian Slavery Act was passed in
1843 to abolish slavery in India, and sections 370, and 371 of the Indian Penal
Code 1860 made it a felony. As part of fundamental rights, India’s constitution
protects human trafficking and forced labour under Article 23. Despite numerous
attempts to address the issue of bonded labour, the Act was the only way to do
so effectively.
---------------------
10 Galanter Marc. (1989) Law and
Society in Modern India Oxford: University Press, India.
11 Ibid.
12 Supra note 3 at 23
13 Ibid at 24.
14 Supra note 2 at 101.
3.2 Abolition of Sati System:
Sati refers to a widow’s life being
burned or buried beside her husband’s body. Since ancient times, becoming a
sati has been regarded as a high honour among Hindus. Raja Ram Mohan Roy, an
Indian social reformer, began fighting these practices in 1812. Because the
behaviour was deemed part of their rituals and traditions, society was
powerless to stop it. On the 4th of December 1829, there existed a law that
might govern it. Governor Lord William Bentick legally outlawed the practice in
Bengal presidency areas by issuing a rule proclaiming Sati and the burning or
burying of Hindu widows, as illegal and punishable by the criminal courts.15 Sati was not adequately controlled in post-independence
India.
Under the Commission of Sati Act,
1987, the legislature took severe steps by enacting a unique law for the
handling of those who abet Sati, making it exemplarily penalised up to the
death sentence.16 It is now a forgotten system in most
parts of India. Due to public opinion, these regulations relating to sati,
widow remarriage, and child marriage were implemented. The laws enacted during
colonial rule fell outside the scope of social jurisprudence. They were only
interested in these laws because of social reformers and public opinion.
3.3 Widows Remarriage:
Widows were not allowed to remarry in
Hindu society to maintain their family’s honour and possessions. Ishwar Chandra
Vidyasagar was instrumental in persuading the British to pass legislation
permitting Hindu women to remarry. The Hindu Widow Remarriage Act was passed in
1856. Legalizing Hindu widow remarriage,17 and
offering legal protection against the loss of
certain types of inheritance if a
Hindu widow remarries. As a result, it enabled a Hindu widow to continue life.
3.4 Prohibition of Child Marriage:
The practice of child marriage was
widely accepted in Indian society, even though it was frowned upon by numerous
religious sects. Despite the efforts of many reformers, it was futile
---------------------
15 Section 2 of The Bengal Sati
Regulation, 1829,
16 Section 4 The Commission of Sati
(Prevention) Act, 1987.
17 Section 1 of the Hindu Widow’s
Re-Marriage Act, 1856 .
until a law was adopted. The
prohibition of the Child Marriage Act 2006 replaced the Hindu Child Marriage
Restraint Act. It established a child marriage prohibition officer and expanded
the family court’s authority to rule on the topic under the Act. The measure
also increased the penalty to two years of solitary confinement, a fine of up
to Rs 1 lakhs, or both.18
3.5 Elimination of Child Labour:
It is a serious crime to prevent a
youngster from enjoying his youth. The Factories Act of 1881 was the first of
its type, prohibiting the employment of children under the age of seven, as
well as limiting working hours. Many laws have been enacted, and the most
recent is the Child Labour (Prohibition and Regulation) Act 1986, as amended in
2016, which prohibits minors under the age of 14 from working.
4.0 Codification of Hindu Law
The codification of Hindu law was one
of the initiatives made by the Indian government in the mid-1950s to further
the idea of women's equality and legitimise it in Indian society.19 Reform of Hindu law was seen as the first step in this
direction. The Hindu Marriage Act of 1955,20 the
Hindu Minority and Guardianship Act of 1956,21 the
Hindu Succession Act of 1956,22 and the Hindu
Adoptions and Maintenance Act of 1956.23 are
among the codified laws known as the Hindu code.
The Hindu Marriage Act of 1955 made significant
reforms, such as removing the need for both husband
and wife to be of the same caste, which was formerly a requirement.
Furthermore, the critical idea of monogamy was included, as well as a
consistent provision for the dissolution of marriage. Academic writings have
criticised Hindu law reform for not introducing uniform practises, which are in
some ways more procedural and inflexible than existing practices in some
parts of India, but they have largely
accepted that Hindu law codification has led to gradual
---------------------
18 Section 10 of the Prohibition of
Child Marriage Act, 2006.
19 Madhu Kishwar. (1994) “Codified
Hindu Law: Myth and Reality” Economic and Political Weekly (29) 2145.
20 The Hindu Marriage Act, 1955 ACT
NO. 25 OF 1955 came into force on 18th May 1955.
21 The Hindu Minority And
Guardianship Act, 1956 ACT NO. 32 OF 1956 came into force on 25th August 1956.
22 Hindu Succession Act of 1956 Act
30 of 1956 came into force on 17th June 1956.
23 Hindu Adoptions and Maintenance
Act of 1956 ACT NO.78 of 1956 came into force on 21st December 1956.
reform and social transformation in
Indian society.24 According to sociological
jurisprudence, the Hindu law reform does not reflect the needs of society, as
it was the leaders who were involved in the nationalist movement and later
governed the country who thought of the need for such a codification and
uniform law to be applied to the Hindu community.
5.0 Constitution and Social Transformation:
India was liberated from political
enslavement in 1947. Whether or not independence brought liberty to Indian
society was a point of debate among academicians at the time. According to
them, political freedom does not guarantee social change, and society cannot be
liberated without dynamic social change. As a result, the years 1947-1950 might
be characterised as a period of “issue development,” a time when issues of
national importance were in their nascent stages. However, it is important to
note that India has been experiencing two parallel revolutions, social and
political, since World War I, and the process is still ongoing.25
The Constitution of India was enacted
on January 26, 1950, to give birth to a new India. Part III of the Constitution
enshrines a set of fundamental rights that provide citizens with specific
rights that must be regulated to bring about sociological change throughout the
country. Because Indians had been oppressed for many years before independence,
the Constitution was enacted as a fundamental law that would control the movement
of all other laws in the country.
It is also possible to argue that the
Constitution was enacted to accelerate India’s social and material rebirth as a
step toward social change and nation-building. As a result, the Constitution
should be interpreted in light of future generations’ wishes as well as
changing social, political, and economic values and demands.26
5.1 Public Interest Litigation and
Social Change in India
Any society must experience social
change. In India, this is accomplished through the Public Interest Litigation.
An attempt of social change to assess the impact of PIL in Indian society. PIL
jurisprudence is required to comprehend the nature of PIL in India. The state’s
formal legal
---------------------
24 Narendra Acharya Dev. (1946)
Socialism and National Revolution, Padma publications, Bombay.
25 Dr. Gajendragadkar P.B. (1976)
Law, Lawyers and Social Change National Forum of Lawyers and Legal Aid, New
Delhi.
26 Kashyap, S. C. (1978) Human Rights
and Parliament Metropolitan, New Delhi.
system has become so disappointed
that it is no longer required by law to do justice, and if justice is done by
chance, we congratulate ourselves on our good fortune. In these circumstances,
the process of social reform through Public Interest Litigation or Social
Action Litigation is one of the best things that has emerged in the country in
recent years.
PIL is a crucial tool for enacting
social change. People from all walks of life benefit from its efforts to better
their lives. It belongs to everyone and is only ever used to administer
justice. Developing nations like India profited from the creation of this legal
tool. PIL has been employed as a tactic in the fight against societal evils. It
is an institutional effort to help the less fortunate members of society. The
Supreme Court in Bandhua Mukti Morcha v.
Union of India, 27 ordered the release of bonded
labourers. The court in Murli S. Dogra
v. Union of India, 28 prohibited smoking in public places.
The Supreme Court issued guidelines for rehabilitation and compensation for
rapes of working women in the landmark case of Delhi Domestic Working Women’s Forum v. Union of India. 29 In Vishaka v. State
of Rajasthan, 30 the Supreme Court established
detailed guidelines for preventing sexual harassment of working women in the
workplace. The researcher in the next point will discuss some recent judgments
of the Supreme Court in concern of social transformation and providing social
justice.
5.2 Right to Free and Compulsory
Education:
From the commencement of the Indian
Constitution, the Right to Education was the Directive Principle of State
Policy incorporated in Part IV under Article 45. But the Hon’ble Supreme 53
Court in 1992 declared the right to free and compulsory education as a
fundamental right which directly flows from the “Right to Life and Personal
Liberty” under Art 21 of the constitution. In 2002 parliament took the
historical step and amended the constitution by inserting Article 21A.31 to implement the right to free and compulsory education for
every child from 6 to 14
--------------------
27 (1984) 3 SCC 161)
28 (2001) 8 SCC 765
29 (1995) 1 SCC 14
30 (1997) 6 SCC 241
31 “The State shall provide free and compulsory
education to all children of the age of six to fourteen years in such manner as
the State may, by law, determine.”
years of age as a fundamental right
and also inserted clause (k) of Article 51A.32 as
a fundamental duties of the parent and guardian. In 2009 the parliament enacted
“The Right of Children to Free and Compulsory Education Act 2009” which came
into force from 1st April 2010 to provide free and compulsory education from
1st to 8th standard to every child. This act is a social revolution in Indian
society for the welfare of children. Thus it can be seen that the law protects
the life of the children.
5.3 Role of the Judiciary as an
institution of social change:
Through its liberal and pro-active
interpretation of the constitutional provisions, the Supreme Court has been a
crucial institution for social transformation. According to sociological legal
theory, the Supreme Court of India has contributed significantly to social
change by making justice accessible to the general public. There are three
traditional roles for the Indian judiciary: adjudication rule33 and conflict settlement; rule interpretation34 and interorgan control; and regulatory functions35 over the legislative and government. According to the
constitution, rule interpretation is the most essential instrument in the hands
of the judiciary for bringing and accelerating social change. With the advent
of ‘Judicial Activism’62 in the realm of judicial functions in modern times,
the judiciary may give more liberal and progressive interpretations of
constitutional provisions and this is
surely one of the 62 “Judicial activism is the extended version of the judicial
review power to overturn government actions. In general, the phrase is used to
identify undesirable exercises of that power, but there is little agreement on
which instances are undesirable.”
---------------------
32 “who is a parent or guardian to
provide opportunities for education to his child or, as the case may be, ward
between the age of six and fourteen years.”
33 “An adjudication is a final legal
judgement or judgement, but it can also refer to the process of settling a
legal issue or claim through the court or justice system, such as a decree
between the defendant and the creditors in the bankruptcy process.”
34 “It is the process of determining
the true meaning of a statute's language. The Court is not expected to
interpret arbitrarily, and as a result, certain principles have emerged as a
result of the Court’s ongoing work. These ideas are also referred to as
“interpretation rules.”
35 “The Apex Court as the final
arbitrator of the law, the Court is responsible for assuring the people of
different countries of the promise of equal justice under the law, as well as
serving as the Constitution's custodian and translator.”
The Supreme Court of India has
rendered several decisions in various cases that have a large impact on Indian
society. Some of these cases are discussed below:
In I.C. Golaknath v. State of Punjab, 36 the Supreme Court ruled that Parliament could not amend any of the
fundamental rights incorporated in part III of the constitution. The main
issue, in this case, was that the Golaknath family owns about 500 acres of
farmland in Jalandhar, Punjab. The state government, however, cited the Punjab
Security and Land Tenants Act, 1953 which said that the Golaknath brothers
could only keep thirty acres apiece, a few acres would be given to tenants, and
the remainder would be considered excess. The Golaknath brothers appealed the
ruling in court, and the case was eventually referred to the Supreme Court in
1965. The Golaknath family challenged the 1953 Punjab Act in a petition filed
under Article 32,37 which is a fundamental right to
constitutional remedies. They claimed that the Act violated their constitutional
rights to acquire and keep the property and practise any profession [Article 19
(1)
(f)65 and (g)],39 as well as the fundamental right to
equality and equal protection of rights (Article 14).40 The question, in this case, was whether the amendment was a
law, as defined by Article 13(2)41 of
the constitution, and whether or not the Fundamental Rights may be changed.
In 1967, the Supreme Court held that
the Parliament could not limit any of the fundamental rights guaranteed by
India’s constitution.
Regarding the basic structure of the
Constitution, the Supreme Court in the State
of Madras v.
---------------------
36 AIR 1967 SC 1643
37 “Individuals have the ability
under Article 32 of the Indian Constitution to petition the Supreme Court for justice
if they believe their rights have been “unduly deprived.”
38 “This article was omitted by the
44th Constitutional Amendment Act 1978. It guaranteed the Indian citizens a
right to acquire, hold and dispose of property which was not possible due to economic
differences.”
39 “This article guarantees any
citizen of India to practice any profession or to carry out any occupation,
trade or business. This article is however subjected to Article 19(6) which
states the reasons for restriction imposed by the state upon the above right of
the citizens.”
40 “The State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India.”
41 “The State shall not make any law
which takes away or abridges the rights conferred by this Part and any law made
in contravention of this clause shall, to the extent of the contravention, be
void.”
Champakam Dorairajan, 42 held that “the Directive Principle
and Fundamental Rights should be in harmony and balance. The Court also stated
that Article 46 is the Directive Principle and cannot be used to override
fundamental rights.”
In Sarla Mudgal v. Union of India, 43
When determining the issue related to ‘marriage,’ the Supreme Court held that
“such matters are handled by personal laws and that one’s personal law cannot
be overcome by another’s personal law. In this case, the Court also followed
Pound’s interpretation of sociological jurisprudence, which states that where
there are conflicts among the interests, the interests on a similar level must
be weighed together.”
In Ashok Kumar Gupta & Ors. v. State of U.P. & Ors, 44 The Court’s perspective regarding social change is heavily
influenced by the observations made therein. The case was a challenge to
specific respondents’ promotion within the State of Uttar Pradesh’s Public
Works Department. The obiter of the Court complete to justify the posture it
took while defending the destitute and underprivileged is relevant for our
analysis, not the consequence of the case.
Justice K.S. Puttaswamy (Retd) v. Union of India, 45 In
this landmark judgment, a 9-judges bench of the Supreme Court upheld “the right
to privacy as a fundamental right derived from Article 21 of the Indian
Constitution. The right to privacy is an essential and integral part of the
Constitution, which protects fundamental rights. The key point of contention in
this area is between an individual’s right to privacy and the government’s
legitimate goal of enforcing its regulations, and a balance must be maintained
while continuing to do so.”
In Common Cause (A Registered Society) v. Union of India, 46 a constitution of the Supreme Court comprising (Chief
Justice Dipak Misra and Justices A K Sikri, A. M. Khanvilkar, D Y Chandrachud
and Ashok Bhushan) held that the right to a dignified death is a fundamental
right. The right to execute advance medical directives is a statement of a
person’s right to bodily integrity and self-determination that is independent
of any state acknowledgement or regulation.
The Court said that:
“The right to live with dignity also
includes the smoothening of the process of dying in case
---------------------
42 AIR 1951 SC 226
43 AIR 1995 SC 1531
44 (1997) 5 SCC 201
45 (2017) 10 SCC 1
46 (2018) 5 SCC 1
of a terminally ill patient or a
person in PVS with no hope of recovery. A failure to legally recognize advance
medical directives may amount to non-facilitation of the right to smoothen the
dying process and the right to live with dignity.”
In Navtej Singh Johar v. Union of India, 47 the Supreme Court unanimously held that “section 377 48 of the Indian Penal Code is unconstitutional because it
violates fundamental rights incorporated under Articles 14, 15, 19, and 21 of
the Indian Constitution. Furthermore, the Apex Court overruled the decision in Suresh Kumar Koushal and others v. Naz Foundation and others. 49 It further stated that section 377 of IPC will only apply to
non-consensual sexual happenings done against adults or minors.”
In the case of Joseph Shine v. Union of India, 50 the
Supreme Court also decided “on the constitutional legality of Section 497 51 of the Indian Penal Code, which criminalised adultery.” The
court stated that “any system that treats a woman with indignity, unfairness,
inequality, or discrimination invokes the wrath of the Constitution,” and that
Sections 497 52 IPC and 198(2) 53 CrPC are in violation of Articles 14, 15 (1), and 21 of the
Indian Constitution, and so ultra vires the Constitution.
---------------------
47 (2018) 10 SCC 1
48 “Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal, shall
be punished with [imprisonment for life], or with impris-onment of either
description for a term which may extend to ten years, and shall also be liable
to fine.”
49 (2014) 1 SCC 1
50 (2018) 2 SCC 189
51 “Whoever has sexual intercourse
with a person who is and whom he knows or has reason to believe to be the wife
of another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape, is guilty of the offence of
adultery and shall be punished with imprisonment of either description for a
term which may extend to five years, or with fine, or with both. In such a case
the wife shall not be punishable as an abettor.”
52 Ibid
53 “For the purposes of sub-section
(1), no person other than the husband of the woman shall be deemed to be
aggrieved by an offence punishable under section 497 or section 498 of the said
Code: Provided that in the absence of the husband, some person who had the care
of the woman on his behalf at the time when such offence was committed may,
with the leave of the Court, make a complaint on his behalf.”
Shafin Jahan v. K.M. Ashokan, 54 in
this case, the Supreme Court overruled a Kerala High Court decision declaring
Hadiya and Shafin Jahan's marriage null and void. The Supreme Court upheld “the
marriage, ruling that the NIA's investigation into the marriage and any other
criminality should continue, but that there should be no interference with the
marriage. The ruling was delivered by a three-judge bench consisting of Chief
Justice Deepak Misra, Justice A.M. Khanwilkar, and Justice DY Chandrachud, and
Hadiya was removed from her parents custody against her will. After she
declared her desire to continue her education, the judge ordered her to return
to college.”
The constitution of India provides
liberty and freedom of choice to every individual. In the case of Lata Singh v. State of Uttar Pradesh, 55 it was observed by the Supreme Court that “the right to
marry is a component of the Right to life enshrined under Article 21 of the
Indian Constitution. The court further held that India is a free and democratic
country and a person is free to marry whosoever he/she likes after attaining
the age of majority which is 21 for boys and 18 for girls. Parents of the boy
or girl do not have any right to harass or instigate acts of violence against
them. Therefore, we can say that a person can marry whomsoever he/she likes
irrespectively of the caste and it is the fundamental right to marry guaranteed
under the constitution of India.”
The Supreme Court in Laxmibai Chandaragi v. The State of
Karnataka, 56 observed that educated younger boys
and girls are choosing their life partners, which is contrary to societal
standards. When two mature persons choose to marry, the consensus of their
family, community, or society is not required, and their consent must be given
priority.
In this case, Indian Young Lawyers Association v. State of Kerala, 57 the Supreme Court with the majority ruled that Rule 3(b) 58 violates the Constitution, Section 393 of the Kerala Hindu 88 Places of Public Worship (Authorisation of Entry) Act, 1965,
and Section 494 of the 1965 Act, which states that the regulations/rules
enacted in this act shall not discriminate at all way against
any Hindu on the base of his/her
membership in a specific section or class. The Supreme Court considered this
prohibition as “hegemonic patriarchy” (hegemonic patriarchy means that
----------------------
55 (2006) 5 SCC 475)
56 (2021) 3 SCC 360
57 (2019) 11 SCC 1
58 The Rule 3(b) of the Kerala Hindu
Places of Public Worship (Authorization of Entry Rules, 1965 (Rules 1965)
states that “Women at such time during which they are not by custom and usage
allowed to enter a place of worship” was the basis of the practice of excluding
women of the age group of 10 through to 50 years to enter the temple.
patriarchy has become such an
overarching concept that discrimination based on it seems to be common sense to
the point that not only males but also women become supporters and perpetrators
of the discriminatory concept).
It stated that discrimination based
on biological and physiological characteristics such as menstruation was
unconstitutional. It amounted to inequality based on a biological trait unique
to men and women. It was an affront to women’s rights to equality and dignity.
According to the Supreme Court, a ban into the temple based on the belief that
menstruation women are “polluted and impure” is a type of untouchability,
because purity and pollution stigmatised women. The Apex Court further held
that Ayyappa followers do not create a separate religion solely because of
their devoutness to Lord Ayyappa, but slightly as part of Hindu worship.59
The Supreme Court overruled a 1951
Bombay High Court decision in the case of State of Bombay v. Narasu Appa Mali, 60 which concluded that personal law is not ‘law’ or ‘law in
force’ under Article 13 and that immunising customs takes away the
constitution's priority. Customs and personal law have a profound impact on
people’s civil status, and no customs or usages can entitlement the sovereignty
over the Constitution and its vision of protecting the sanctity of
self-respect, liberty, and equality.
6.0 Conclusion :
The researcher comes to the
conclusion that societal problems are interconnected rather than isolated, and
that the law serves as a mirror for understanding how individuals are connected
to one another. The effectiveness of law and other devices for social
transformation should be coordinated with India’s social and cultural life. It
is unavoidable to transform a social structure in accordance with the needs of
the times and the people’s modes and mores. An outstanding balance between the
instrumentality of law and people’s folkways and mores would cover the path for
actual justice in action, resulting in societal empowerment. The law and the
Judiciary could be used as a tool for social change.
-------------------------
59 Ibid
60 AIR 1952 Bom 84
Article Information
ROLE OF LAW AND JUDICIARY IN SOCIAL TRANSFORMATION IN INDIA BY: NARAYAN DNYANOBA SASTE
Authors: NARAYAN DNYANOBA SASTE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.