Change
is the law of nature what is today shall be different from what it would be
tomorrow.Therefore social structure is also subject to incessant change.The
word 'change' denotes a difference in anything observed over some period of
time.Social change therefore would mean observable differences in any social
phenomena over any period of time According
to Gillin and Gillin "social changes are varies
from the accepted modes of life,whether due to alteration in geographical
conditions in cultural equipment compositions of the population or ideologies
and whether brought about by diffusion or innovations within the
group".
The law and social changes is a unique subject and studies the social problems of the society and their solutions here, through legal approach. In fact, there are two modes of changing law. First is ,"law changed the society"; which means that the law of the land compels the society to be changed according to the law. When any dispute involving the question of law, came before the judiciary, the existing custom or law, second is, "society changed the law"; it means law is made by the society according to its requirement by its democratic instrument. i.e. Legislative or by adopting custom and usage. The prime function of the legislators is to enact the law, regarding to the desire of the validity of that law if court finds that constitutional, moral, and just then holds it valid but if not so then declares it invalid and unconstitutional.
Law is 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. As of today, the decisions of the Court are not just being tested on the touch stone of social justice, but indeed they are being cited of as precursors to ‘social rights’. The Court has pro-actively and vigorously taken up to cause of social justice and has gone to the extent of articulating newer social rights such as the right to food, right to health, right to education Thus, the march of law is clearly in favour of Supreme Court having performed a pro-active role in social change of the languishing masses. It 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 regards. 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, like 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 blue-print for a new nation. The derecognizing of 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. Some areas where law has given the influence for social change are:
1. Area of agrarian reform policy and legislation;
2. Area of implementation of untouchability abolition law;
3. The normative aspects of employment and educational reservation for the scheduled castes and scheduled tribes under the Constitution;
4. The allied field of abolition of bonded labour;
5. The problem of substantive impact of changes in the family law marriage, equal rights of women to inheritance and dowry.
For purposes of constitutional competence, these actions are characterized as those coming under the writ jurisdiction of the Supreme Court of India under Article 32 of our Constitution and the various High Courts, under Article 226. The traditional extent of writ jurisdiction was of course a colonial inheritance from the British-era and the remedies that could be invoked were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari. However, the Indian Courts have pushed the boundaries of constitutional remedies by evolving the concept of a ‘continuing mandamus’ which involves the passing of regular directions and the monitoring of their implementation by executive agencies. In addition to designing remedies for ensuring that their orders are complied with, the Courts have also resorted to private law remedies such as injunctions and ‘stay’ orders in Public Interest Litigation (PIL) matters. The Supreme Court of India has been able to shape appropriate remedies for a variety of situations on account of the wide discretionary powers for granting constitutional remedies that have been conferred on it as per the language of Article 32 of the Constitution. Furthermore, under Article 141 of the Constitution of India, the Supreme Court’s rulings are considered to be the ‘law of the land’ and become binding precedents for all courts and tribunals in the country’s legal system. Hence, the Supreme Court’s decisions in Public Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence that gives due weight age to the interests of the underprivileged and backward sections in society. A significant consequence of this is that creative remedies designed for particular fact-situations come to be widely reported to by Courts all over the country. In this way, the rulings given in PIL cases create an active judicial dialogue within the whole legal system.
A few case laws:
Bihar Legal Support Society v. The Chief Justice of India & Others:
“The majority of the people of our country are subjected to this denial of ‘access to justice’ and overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings…… The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the easy reach of the poor and disadvantaged sections of the community.”
Keshavananda Bharati v. State of Kerala.
By a narrow majority of 7-6 it was ruled that Parliament’s power of amendment was not absolute and it could not amend the ‘Basic structure’ of the Constitution, which in the opinion of the judges consisted of elements such as democracy, rule of law, secularism, separation of powers and judicial review.9 The said decision did not curry favour with the Indira Gandhi-led government of the day and three of the judges who ruled for the majority were superseded in the matter of appointment to the position of Chief Justice of India in 1973. Nevertheless, the decision had given a clear signal in defense of judicial independence.
People’s Union for Civil Liberties v. Union of India,
where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of children from low-income backgrounds in schools and also ensuring that they received adequate nutrition. However, there had been widespread reports of problems in the implementation of this scheme such as the pilferage of foodgrains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme.
Justice V. R. Krishna Iyer, has rightly observed that ´ Law is not a brooding omnipotence in the sky but apragmatic instrument of social order. Judicial Process is a means of enforcing law. In the light of the abovediscussion certainly it it would be perfectly right to say that Judicial Process is an instrument of socialordering. The prominent work of Indian Courts today may be seen as prosecuting poor people for pettycrime. The main Role of courts continues to be, as in colonial times to (i) enforce law against (mostly poor)citizens; (ii) protect property rights(state and private) and (iii) uphold and protect the authority of state. Onthe other hand, in the immortal words of Supreme Court in S.P.Gupta Case THE CONSTITUTION has made arevolutionary change in the role of Indian Courts from being an arm of the RAJ to being an instrument of SWARAJ, an ´arm of social change.
The law and social changes is a unique subject and studies the social problems of the society and their solutions here, through legal approach. In fact, there are two modes of changing law. First is ,"law changed the society"; which means that the law of the land compels the society to be changed according to the law. When any dispute involving the question of law, came before the judiciary, the existing custom or law, second is, "society changed the law"; it means law is made by the society according to its requirement by its democratic instrument. i.e. Legislative or by adopting custom and usage. The prime function of the legislators is to enact the law, regarding to the desire of the validity of that law if court finds that constitutional, moral, and just then holds it valid but if not so then declares it invalid and unconstitutional.
Law is 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. As of today, the decisions of the Court are not just being tested on the touch stone of social justice, but indeed they are being cited of as precursors to ‘social rights’. The Court has pro-actively and vigorously taken up to cause of social justice and has gone to the extent of articulating newer social rights such as the right to food, right to health, right to education Thus, the march of law is clearly in favour of Supreme Court having performed a pro-active role in social change of the languishing masses. It 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 regards. 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, like 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 blue-print for a new nation. The derecognizing of 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. Some areas where law has given the influence for social change are:
1. Area of agrarian reform policy and legislation;
2. Area of implementation of untouchability abolition law;
3. The normative aspects of employment and educational reservation for the scheduled castes and scheduled tribes under the Constitution;
4. The allied field of abolition of bonded labour;
5. The problem of substantive impact of changes in the family law marriage, equal rights of women to inheritance and dowry.
For purposes of constitutional competence, these actions are characterized as those coming under the writ jurisdiction of the Supreme Court of India under Article 32 of our Constitution and the various High Courts, under Article 226. The traditional extent of writ jurisdiction was of course a colonial inheritance from the British-era and the remedies that could be invoked were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari. However, the Indian Courts have pushed the boundaries of constitutional remedies by evolving the concept of a ‘continuing mandamus’ which involves the passing of regular directions and the monitoring of their implementation by executive agencies. In addition to designing remedies for ensuring that their orders are complied with, the Courts have also resorted to private law remedies such as injunctions and ‘stay’ orders in Public Interest Litigation (PIL) matters. The Supreme Court of India has been able to shape appropriate remedies for a variety of situations on account of the wide discretionary powers for granting constitutional remedies that have been conferred on it as per the language of Article 32 of the Constitution. Furthermore, under Article 141 of the Constitution of India, the Supreme Court’s rulings are considered to be the ‘law of the land’ and become binding precedents for all courts and tribunals in the country’s legal system. Hence, the Supreme Court’s decisions in Public Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence that gives due weight age to the interests of the underprivileged and backward sections in society. A significant consequence of this is that creative remedies designed for particular fact-situations come to be widely reported to by Courts all over the country. In this way, the rulings given in PIL cases create an active judicial dialogue within the whole legal system.
A few case laws:
Bihar Legal Support Society v. The Chief Justice of India & Others:
“The majority of the people of our country are subjected to this denial of ‘access to justice’ and overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings…… The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the easy reach of the poor and disadvantaged sections of the community.”
Keshavananda Bharati v. State of Kerala.
By a narrow majority of 7-6 it was ruled that Parliament’s power of amendment was not absolute and it could not amend the ‘Basic structure’ of the Constitution, which in the opinion of the judges consisted of elements such as democracy, rule of law, secularism, separation of powers and judicial review.9 The said decision did not curry favour with the Indira Gandhi-led government of the day and three of the judges who ruled for the majority were superseded in the matter of appointment to the position of Chief Justice of India in 1973. Nevertheless, the decision had given a clear signal in defense of judicial independence.
People’s Union for Civil Liberties v. Union of India,
where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of children from low-income backgrounds in schools and also ensuring that they received adequate nutrition. However, there had been widespread reports of problems in the implementation of this scheme such as the pilferage of foodgrains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme.
Justice V. R. Krishna Iyer, has rightly observed that ´ Law is not a brooding omnipotence in the sky but apragmatic instrument of social order. Judicial Process is a means of enforcing law. In the light of the abovediscussion certainly it it would be perfectly right to say that Judicial Process is an instrument of socialordering. The prominent work of Indian Courts today may be seen as prosecuting poor people for pettycrime. The main Role of courts continues to be, as in colonial times to (i) enforce law against (mostly poor)citizens; (ii) protect property rights(state and private) and (iii) uphold and protect the authority of state. Onthe other hand, in the immortal words of Supreme Court in S.P.Gupta Case THE CONSTITUTION has made arevolutionary change in the role of Indian Courts from being an arm of the RAJ to being an instrument of SWARAJ, an ´arm of social change.
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