LAW AS AN INSTRUMENT OF

SOCIAL CHANGE
Societies are in a permanent process of change, and law is part of this process. Whether law
can initiate social change is controversial. Most theories in the fields of general sociology and
sociology of law conceive law rather as a consequence of social change than as its cause.
Empirical studies confirm the limited social impact of new regulatory programs but also
show ways out of the regulatory dilemma of modern democracies. New programs may be
successful if they use a regulatory mix of legal instruments, economic incentives, and
educational devices. In two areas of legal intervention law has proven to be of very modest
impact: in the process of modernization of developing countries and in the process of
globalization. In the former case, culture forms a high barrier to the instrumental use of law.
A strong local legal science is needed to bridge law and customs. In the latter case legal
systems compete for the better solution of regulatory problems and largely prevent unified or
globalized law to become effective. Hence a tendency for the privatization of rule making
and the emergence of private adjudication is observable.

The law regulates the social interests, arbitrates conflicting claims and demands
security of persons and property of the people and is an essential function of the state. It
could be achieved through instrumentality of law. Undoubtedly, there is a cross cultural
conflict where living law must find answer to the new challenges and the courts are required
to mould the sentencing system to meet the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection of society and stamping out criminal
proclivity must be the object of the law, which must be achieved by imposing appropriate
sentence. Therefore, law as a corner stone of the edifice of “order” should meet the
challenges confronting the society. The social impact of the crime, e.g. where it relates to
offences against women, dacoity, kidnapping and other offences involving moral turpitude or
moral delinquency which have great impact on social order and public interest, cannot be lost
sight of and per se require exemplary treatment. The law in order to be legitimate and legal
must also satisfy the mandates of the Constitution of India. The Constitution of India is not
intended to be the arena of legal quibbling for men with long purses. It is made for the
common people. It should generally be so construed as that they can understand and
appreciate it. The more they understand it the more they love it and the more they prize it. It
is really the poor, starved and mindless millions who need the court’s protection for securing
to themselves the enjoyment of Human Rights. The Constitution precedents cannot be
permitted to be transformed into weapons for defeating the hopes and aspirations of our
teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations
representing the will of the people can only become articulate through the voice of their
elected representatives. If they fail the people, the nation must face the death and destruction.
Then, neither the court nor the Constitution will save the country. The Constitution, unlike
other Acts, is intended to provide an enduring paramount law and a basic design of the
structure and power of the State and rights and duties of the citizens to serve the society
through a long lapse of ages. It is not only designed to meet the needs of the day when it is
enacted but also the needs of the altering conditions of the future. It contains a framework of
mechanism for resolution of constitutional disputes. It also embeds its ideals of establishing
an egalitarian social order to accord socio-economic and political justice to all sections of the
society assuring dignity of person and to integrate a united social order assuring every citizen
fundamental rights assured in part III and the directives in part IV of the Constitution. In the
interpretation of the Constitution, words of width are both a framework of concepts and
means to achieve the goals in the preamble. Concepts may keep changing to expand and
elongate the rights. Constitutional issues are not solved by mere appeal to the meaning of the
words without an acceptance of the line of their growth. The intention of the Constitution is,
rather, to outline principles than to engrave details. Thus, law should sub serve social
purpose. Judge must be a jurist endowed with the legislator's wisdom, historian's search for
truth, prophet’s vision, and capacity to respond to the needs of the present, resilience to cope
with the demands of the future and to decide objectively disengaging himself/herself from
every personal influence or predilections. Therefore, the judges should adopt purposive
interpretation of the dynamic concepts of the Constitution and the Act with its interpretative
armoury to articulate the felt necessities of the time. The judge must also bear in mind that
social legislation is not a document for fastidious dialects but a means of ordering the life of
the people. To construe law one must enter into its spirit, its setting and history. Law should
be capable of expanding freedoms of the people and the legal order can, weighed with utmost
equal care, be made to provide the underpinning of the highly inequitable social order. In this
background we will discuss the “need” of amending the Information Technology Act,
2000(Act).

THE NEED FOR CHANGE

The Act has been enacted “primarily” to deal with e-governance and e-commerce.
The “legislature” was, however, cautious and wise enough to incorporate provisions dealing
with “contraventions” and “offences” using the information technology. A “Constitutionally
ideal amendment initiative” must consider the following aspects:

(a) Nature of amendment: The concept of “indepth review” suggests that the present Act is
“improper” rather than “imperfect”. The stress seems to be on “complete change’ rather than
“necessary minor modifications”. This is a wrong strategy that has unfortunately been
adopted by the government.

(b) Need of amendment: The need of amendment is not based on “germane reasons” but is
primarily guided by the recent “MMS controversy”. The law is meant for the “People of
India” and not for any particular “segment”. The most embarrassing moment of the Indian
Legal System was not the “ arrest” of the CEO of the Bazee.com but the “interference of the
USA in the sovereign governance of India”. It must be noted that the managing of e-
commerce business requires certain safeguards to be followed by those who are deriving
benefits out of it. If these ‘minimum safeguards” are not followed than the law will take it
very seriously. The “rule of law” does not recognise any appeal of a “foreign country” or
“domestic pressures”. Thus, the amendment of the Act must be guided by germane reasons
only and it should not be based on irrelevant, arbitrary, unreasonable and extraneous
considerations.

(c) Areas of amendment: The law exists to serve the needs of the society, which is governed
by it. If the law is to play its allotted role of serving the needs of the society, it must reflect
the ideas and ideologies of that society. It must keep time with the heartbeats of the society
and with the needs and aspirations of the people. As the society changes, the law cannot
remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, ‘Then I
hear any man talk of an unalterable law, I am convinced that he is an unalterable fool." The
law must, therefore, in a changing society march in tune with the changed ideas and
ideologies. At this stage the words of Justice Bhagwati in the case of National Textiles
Workers Union v P.R.Ramakrishnan need to be set out. They are: “ We cannot allow the
dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must
change with the changing social concepts and values. If the bark that protects the tree fails to
grow and expand along with the tree, it will either choke the tree or if it is a living tree it will
shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the
needs of changing society, then either it will stifle the growth of the society and choke its
progress or if the society is vigorous enough, it will cast away the law, which stands in the
way of its growth. Law must therefore constantly be on the move adapting itself to the fast-
changing society and not lag behind. The Act require amendment to fill in the following
“grey area” on a priority basis:

(i) The “right to information” as flowing out of Article 19(1)(a) pf the Constitution,

(ii) The “right to know” as flowing out of Article 21 of the Constitution,

(iii) The “right to privacy” as flowing out of Article 21 of the Constitution,

(iv) The need of protecting the “electronic data property”. The “paper based data property”
can be sufficiently protected by the Indian Copyright Act, 1957,

(v) The need of providing a “sound e-governance base” that should include effective e-justice
administration facilities,

(vi) The need for providing a more stronger e-commerce base,

(vii) The need to strengthen the “Internet Banking” infrastructure,

(viii) The need to strengthen the “ Cyber Insurance Business infrastructure”,

(ix) The need to protect people of India from “Cyber Terrorism” in India,

(x) The need of adoption of the “techniques of aggressive defence” in India, etc.

These are the issues that need an immediate attention of the “legislature” and not
other “self serving changes” which will leave the Act more vulnerable to
“unconstitutionality”.

(d) Place of amendment: One of the thriving needs of change is in the field of “cyber
forensic”. The Act, however, is not the right “place” to make the change. In India we have
both “substantive” and “procedural” laws. The Indian Penal Code and Information
Technology Act are “substantive laws” whereas the Indian Evidence Act and Criminal
Procedure Code are “procedural laws”. Thus, the inter-mingling of procedural laws into
substantive laws is not a desirable exercise. This mandates the amendment of the “Evidence
Act” rather the “Information Technology Act”.

(e) Ancillary matters: The ancillary matters like “cyber-café regulations”, “blocking of
web-sites”, etc are not the fit subject for “amendment”. As far as the regulation of the cyber-
café is concerned, the respective “State Governments” can do so through “notification
method”. Similarly, the authority for the blocking of web sites has already been constituted
under the provisions of the Act; hence duplicating the efforts and wasting the valuable
resources will serve no useful purpose.

If these areas are “ignored” either in the zeal of amendment process or due to pressure
tactics, then the law in this regard would be a “remedy worst than the malady” hence its
amendment should not be undertaken at any cost. If such an amendment were proceeded
with, then it would definitely be tested on the touchstone of the provisions of Constitution of
India and will not survive the test of “constitutionality”.

Alternative strategy
The cumbersome, time consuming and expensive process can be avoided by issuing “simple
notifications” by the government that will clear the mist surrounding the present atmosphere.
Similarly, since the matter is before the court the same can also be taken care by the courts in
India. Legislatures are not best fitted for the role of adapting the law to the necessities of the
time, for the legislative process is too slow and the legislatures often divided by politics,
slowed down by periodic elections and overburdened with myriad other legislative activities.
This task must, therefore, of necessity fall upon the courts because the courts can by the
process of judicial interpretation adapt the law to suit the needs of the society. Thus, Courts in
India can provide a much better solution to this situation by adopting the “purposive and
updating modes of interpretation’ of the provisions of the Act. It is presumed that the
Parliament intends the court to apply to an ongoing Act a construction that continuously
updates its wordings to allow for changes since the Act was initially framed. While it remains
law, it has to be treated as always speaking. This means that in its application on any day,
the language of the Act though necessarily embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as a current law.

Conclusion
The role model for governance and decision taken thereon should manifest equity, fair play
and justice. The cardinal principle of governance in a civilized society based on rule of law
not only has to base on transparency but also must create an impression that the decision-
making was motivated on the consideration of probity. The government has to rise above the
nexus of vested interests and nepotism and eschew window-dressing. The act of governance
has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious
actions. Therefore, the principle of governance has to be tested on the touchstone of justice,
equity and fair play. Though on the face of it the decision may look legitimate but as a matter
of fact the reasons may not be based on values but to achieve popular accolade, that decision
cannot be allowed to operate. Any decision of the government ignoring these “mandates” will
be declared to be unconstitutional, no matter how much pressure is put on it.