1st MODULE

LAW AND SOCIAL CHANGE-GLOBALISATION AND RIGHT TO

DEVELOPMENT: NEW CHALLENGES

INTRODUCTION:-

In primitive societies the folkways, mores, and customs suffice to control the individual
behaviour, however in modern civilized societies customs tend to loosen their hold with the
result that laws are enacted by the state to control the individual. Social change is a universal
phenomenon, characterizing all societies. Increase in population, developments in science
and technology, etc., are some of the factors which usher in change. Social or political
revolutions can bring about change, often on a large scale. The French revolution for example
changed the social structure and culture of European society in many respects.

1. LAW AND SOCIAL CHANGE

Kant defined law as, ‘a formula which expresses the necessity of an action’.

According to Duguit laws are the ‘ rules of conduct which normal men may know they must
observe inorder to preserve and promote the benefits derived from life in society’.

According to Roscoe Pound,‘ law is an authoritative canon of value laid down by the force of
politically organized society’.

B.N.Cardozo writes, Law is a principle or rule of conduct so established as to justify a

prediction with reasonable certainity that it will be enforced by the courts if its authority is
challenged. Social process the social change are both different.

Austin defined law as ‘ the command given by the superior to an inferior. He says law
properly so called and flows from a determinate source or emanates from a determinate
author’.

1.1 SOCIAL PHENOMENA AND SOCIAL CHANGE

The industrialization of human society has brought in far reaching changes in social
relationships. Mechanisation has given rise to a quantitative approach to life. Almost in every
sphere of life, these social phenomena have made way for a means end relationship. In

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political philosophy this has been known as ‘utilitarianism’, the doctrine that sets a high value
on the utility of human relations. Urbanisation has changed the face of the earth, by creating
vast metropolitan centres where many millions stay.

Social process is continous and it does not denote any particular direction. Social change has
a direction: social progress, social decline etc. Nevertheless, social progress and social
change are often found to be overlapping in society. The word ‘change’ denotes a difference
in anything observed over some period of time. Hence social change would mean observable
differences in any social phenomenon over any period of time. Social change is the change in
society and society is a web of social relationships. Hence, social change is a change in social
relationships.

1.2 THEORIES OF SOCIAL CHANGE

No society is static. Changes develop gradually over the years in practically every sphere
brought about by evolution in environmental, economic and political circumstances, national
and global, as well as in religious and moral political circumstances, national and global, as
well as in religious and moral ideas. They may occur slowly or rapidly; they may be
ephermal as with passing fashions or permanent.

2. Cultural theory
3. Psychological theory
4. Sociological theory
5. Marxian theory of social change

1.2.1 Cultural Theory of Social Change

W.F. Ogburn, an American sociologist, in his Social change has proposed that material or
technological change precedes social change. He has divided culture into two parts, viz,
material and non-material culture. When changes occur in the material culture, these in turn
induce changes in the non-material culture. But the response of the latter may be slow and it
may result in a ‘cultural lag’. For example, in the early phase of industrialization, factories
employ machines, technical resources etc. to attain mass production. The workers in factories
may not readily get the benefit of job security, social welfare etc. They may have to wait for

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years. In other words , technical efficiency is given a high priority, while human welfare is
neglected.

Arnold Toynbee, a British historian in his 13 volume Studies in history has studied 21
separate cultures, to build up a general theory of the rise and fall of civilization. According to
him two elements – challenge and response- create, generate and finally destroy civilizations.
These elements interact reciprocally. A complex civilization creates more and more
challenges because of its environment.

P.A. Sorokin, a Russian sociologist who migrated to the U.S.A in his study social and
cultural dynamics has developed a cyclical theory of change, in terms of dominant set of
ideas or ‘ ideological culture’ ruling the civilizations in a given period. Thus he has defined
civilizations as ideational, sensational and idealistic. The ideational culture period has
emphasized the spiritual and the non-material. The sensational period has emphasized the
material and agnostic values and reality; And the idealistic period has combined in some form
the elements from the two principal types.

Sorokin is concerned more with the cultural than with the historical sequence. In fact
historians may not accept this sequence. Also one dominant ideology makes way for another
dominant ideology, in a cyclical fashion. As already noted, Ogburn’s theory is deterministic,
and it is confined mainly to the Western hemisphere. In any case, technology is not the
product of modern West alone. Even ancient civilizations (such as Egypt) had well developed
technology in some spheres of life.

Oswald Spengler’s pessimism was the product of a West torn by wars and mutual hatred, and
he was wrong in taking a purely negative look at the modern West. Toynbee’s interpretation
of history is bold and imaginative, but the cultural currents of history are not necessarily in
accordance with his ideas. Sorokin’s theory of change is based on dominant ideals and
values. This tends to ignore the material basis of society. In brief, all these theories are based
on sequential or rhythmic pattern which we may not always find existing in social reality.

1.2.2 Psychological Theory of Social Change

There is also a psychological approach to the study of social change. Gabriel Tarde (of
France ) and Lester F. Ward (of the U.S.A) sought to explain social change, by recourse to

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the psychical characteristics. Both of them tend to take a nominalist position, in which
individuals are more significant than collectivity or society. The desires and beliefs of
individuals are manifested in three principal forms: Repetition, opposition and invention. Any
new idea or belief which appears in the mind of an individual tends to be imitated by other
individuals. Different waves of imitation produce opposition. Opposition results either in
mutual destruction or in mutual adaptation. So the cycle goes on.

From the above ‘laws’ the theory of social change can be deduced. Invention is the source of
social change. Innate mental ability, social need and social conditions are the factors which
facilitate or hinder social change. In the life history of a society, there is a rhythm of the
periods of custom and ancient patterns and of fashion and modernity. In the period of custom,
it is the ancient patterns which are predominantly imitated, while in the period of fashion, it is
the modern pattern of belief or conduct which becomes predominant.

In ward’s theory of social change, there is a distinction between the dynamic and the guiding
social forces. Dynamic agencies are desires or feelings; the guiding agency is the human
intellect. Desire are the ‘motor-power’; intellect is the ‘guide’. The desires and wishes of
mankind are not measurable. It is difficult to operationalise these subjective concepts for an
analysis of social change.

Tarde’s concept of imitation is too broad and too vague. Like ‘Freud’s ‘libido’ it seeks to
explain all facts by a single factor, and therefore becomes scientifically imprecise. Ward’s
theory that increasingly rational force gains dominance over the desires or feelings of man is
incorrect, for mankind is always prone to irrational behavior. Social change can result from
the interaction between certain types of personality and the socio-cultural milieu in which
they live.

1.2.3 Sociological Theory of Social Change

Social change brings about alterations in human society on many levels; small, isolated
communities give way to large conglomerates; the patterns of family, kinship, private
property undergo modifications. The local government of elders or chieftains is transformed
into large political aggregates. Economic change too is manifested in the changeover from
small, self-sufficient economic units based on family or kinship labour into large

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manufacturing units. Thus in economic, political, and social terms, social change refers to the
replacement of older forms with new patterns of living.

Ferdinand Tonnies has written elaborately on the change in the basic pattern of life when
community ( Gemeinschaft ) changes over to association ( Gesselschaft) . This change occurs
in many societies which have undergone economic and political alterations. In Gemeinschaft
the following characteristics are predominant; a) Individual will is subordinated to the
collective spirit in most cases. b) there is a strong commitment to religion and tradition c) the
property is shared in common d) loyalty to nation is sacred act, and the national assets are
spiritual rather than material.

In Gessellschaft the following features are important ;

a. Individual will prevails over collective spirit,

b. There is an emphasis on secular values in the governance of society
c. Contractual and individual interests are widespread
d. Public opinion, fashions, fads etc. shape the behavior of most members, with little or
no emphasis on religious values and norms

Historically Gemeinscheft appeared earlier than the Gessellschaft. In the course of time,
however, Gemeinscheft began to disintegrate and made way for Gessellschaft. However these
two forms of life are often mixed.

Durkheim, has contrasted, mechanical solidarity of primitives with organic solidarity of

complex societies. Henry Maine, a British jurist has contrasted status with contract. Maine’s
status relationship is hereditary or ascribed, while contractual relationships signifies the
emphasis on contract or means-end relationship.

1.2.4 Marxian theory of social change

Karl Marx has dwelt on the basic economic orientation of social change. According to him
the mode of production in material life determines the general character of the social,
political and spiritual processes of life. It is not consciousness of men that determines their
existence, but on the contrary, their social existence determines their consciousness. He has
classified the societies in historical terms: Asiatic, the ancient, the feudal and the modern
bourgeoisie (capitalist). In all these societies there has been a class struggle because the

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owners of the means of production have exploited the working class. As a consequence of
this disparity class conflict develops and the older form is overthrown. But class conflict still
persists because of continuing economic disparity.

The Marxian theory explains the social change that have taken place by concentrating on the
infrastructure, that is, the economy. All the beliefs, ideas,, norms, values, social institutions
together called superstructure – are based on material or economic foundation. However
social factors such as religious beliefs, myths and legends, mores and legal codes have been
moulding human behavior from the earliest times.

In the course of their history men increasingly transform nature to make it better serve their
own purposes. And, in the process of transforming nature, they transform themselves.

Investigations by Brainshaw, Malinowski, Durkheim and Marcell Mauss, among others have
shown that in primitive society economic life is inseparable from social life, and cannot be
understood if divested from religion, magic or mores. This is true of complex societies also.
In other words, economic organization is often moulded by economic factors. In any case
there is, a reciprocal relationship between economy and society.

1.3 MOBILISATION, INSTITUTIONALISATION AND LEGITIMISATION

Mobilisation of people is necessary to attain certain goals such as the institutionalization of

revolutionary gains and the legitimation of the new order. Bertrand Russel, was much
impressed by the enthusiastic participation of youths and other groups in Russia’s
modernization and industrialization. India also witnessed such an upsurge in the initial years
of its independence, under the leadership of Jawaharlal Nehru. He exhorted Indians to bring
about a new social order through planning. This is mainly the reason as to why importance
was given to social planning in India though in the Indian Constitution there is no specific
mention of planning.

Legitimation broadly means the acceptance of the new regime or rule by the majority of
people. Legitimation stands for the internalization of the new political or social system in the
minds of people, though there may be sections of people who may regard the national
government as lacking in legitimacy. In many modern countries such as Ireland, France,
Canada, there are such dissident groups.

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1.4 STATE AND SOCIAL CHANGE

In most countries of the world, the state has taken on the role of an initiator of social change.
There are two important reasons underlying this role: a) the state has a legal or constitutional
commitment to the ideal of a welfare State. and b) the state has vast resources with which it
can initiate, aid and develop the programmes. In modern times, the state and the governments
have a philosophy of development or social change. Much of this welfare philosophy has had
its origin in the ‘social contract’ theories of the two British Philosophers, Thomas Hobbes
and John Locke. Independent India has witnessed the launching of many palnning measures
and welfare schemes to help people. Although these measures have not been always
successful, they attest to the importance of the state in bringing about social change.

2. SOURCES OF SOCIAL CHANGE

a) Cultural interaction
b) Planning
c) Legislation
d) Synergism
e) Conflict and protest
f) Education
g) Industrial - Urbanisation

Social change refers to the changes in the structure and functioning of institutions such as
family, property and education in society. Institutions regulate human conduct and allocate
roles and resources. Therefore social change refers to changes in role relations between
persons, persons and groups and between groups. Social change also refers to the changes in
the principles of resource allocation.

Indian society has a hoary past and it is neither possible nor necessary for us to delve deep
into this long period of history. However it is widely accepted that rapid social transformation
began in India in the 18th century with the advent of Western, particularly British,
colonialism. But the Indian nation-state as a political entity emerged scarcely four decades
ago and our main concern is with the sources and direction of change during these decades
keeping British India as our base line.

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The leading factors contributing to change are cultural interaction, planning, legislation,
synergism, conflict and protest, education and industrial - urbanisation.

2.1 Cultural Interaction

Cultural interaction is a source of change when two or more societies or specific social
categories within the same society interact and one or more of these are affected in the
process. Inter-societal interactions may be between historically antecedent or
contemporaneous societies. Thus independent India ‘interacts’ with its antecedent societies
such as ancient, medieval, and British India, even today in that it borrows and retains several
of their socio-cultural aspects.

In the contemporary world no society can exist as a social isolate and therefore it is obliged to
interact with a wide variety of even distantly placed societies. Thus contemporary Indian
society and culture is influenced by capitalist democratic societies as well as socialist
countries. When analysts refer to the processes of Westernization, modernization,
secularization etc. they have in mind the impact of these societies. Further a socio culturally
plural society such as India has enormous potentiality to bring about change through cultural
interaction.

First, although India is a Nation-society it is constituted by a large number of distinct socio-

cultural entities such as religious, linguistic, regional or tribal collectivities. The intensity of
interaction between these entities depends on a host of historical, geographical and cultural
factors Second the interaction between the different social segments, that is caste groups, has
also been an important source of change in Indian society. The term sanskritization
introduced by M.N. Srinivas alludes to the widespread tendency on the part of lower castes
and tribal communities to imitate the life-styles of upper castes in Indian society.

Sanskritization, Westernization and secularization are as much consequences of change as

they are sources. The lower castes do adopt the style of life of upper castes not simply as
imitation but also as protest. This is possible largely because the principle of equality is
accepted under democratic political set up prevailing in India. Similarly internalization of
Western ideas and taking to modern life style by the Indian elite and fast growing urban
middle class is possible because of the continous and increased interaction between India and
the world.

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2.2 Planning

Traditionally, the role of the state was confined to protecting the citizen from external
aggression and providing internal security so that he could go about doing his work without
hindrance. But with the emergence of socialist and welfare states initiating and directing
change became an important agenda on the item of state activity.

In independent India, planning that is directed social change, is one of the most important
sources of social change. What is attempted in the context of planning is organizational
innovation or institution building. In the industrial context the differentiation between the
public and private sectors is a case in point. The programme of institution building is
particularly systematic in the context of Community development in rural India; the school,
the Cooperative Society, the Statutory Panchayat, the Youth Club, the Women’s Club etc. are
familiar cases.

Planning which is expected to direct the course of change, may not always be successful in
this. The benefits of planning are monopolized by the ‘haves’ and the weaker sections of the
community are deprived of their shares. It is indeed paradoxical that the very instrument of
change i.e, planning, aids the vested interests and helps perpetuate the status quo. Evidences
suggest that concentration of economic power has increased in that in the corporate sector the
assets of bigger companies have increased substantially. Similarly, the disparity between
urban and rural sectors too has increased to the further disadvantage of the rural population.
Within the urban and rural sectors while the upper class has experienced rapid and the middle
class substantial upward mobility, the lower class has experienced only very modest vertical
mobility. However, while the disparity between the rich and the poor did increase, it is not
true that the condition of the poor has deteriorated in absolute terms and the poor are
undergoing a process of pauperization and immiseration as is argued by many. This is evident
from the improvement in their longevity, health conditions, literary levels etc.

2.3 Legislation

It is widely recognized that there is a time lag between the introduction of a piece of
legislation and the community’s conformity to the legislative, measure concerned. India is an
outstanding example of the employment of the legislative measures to initiate change. The
promulgation of Constitution was the first step in this direction. A variety of social

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legislations are being introduced in independent India to bring about change. They cover
legislations for the welfare of the industrial worker, to safeguard the interests of the
downtrodden in the agrarian sector, to emancipate women, to eradicate untouchability, to
facilitate the social and economic development of the tribal population, etc. All these
legislations are slowly but surely making their impact on the Indian social fabric.

For example, while it is true that India has the largest body of agrarian legislations in the
short span of its existence as an independent nation-state agrarian urest is widespread and the
problem remains basic and fundamental. The birth of non-violent movements such as the
Bhoodan – Gramdan movement and violent uprisings such as the Nxalbari movements are
the outcome of the failure of legislation in the agrarian sector, to a large extent.

2.4 Synergism

Synergism refers to the process wherein the isolated actions of an aggregate of individuals
produce conditions of exigency which in turn results in social change. The social actors are
not consciously contributing or motivated to bring about change. But the total effect of their
independent actions may cause change. Examples of this in independent India are those of
family planning and rural- urban migration. The family planning measures are vigorously
advocated by governmental and other agencies so that impact of economic growth may not be
fulfilled by a disproportionately large population growth. The rural- urban migration takes
place in the context of rapid urbanization and industrialization.

If synergism is a significant source of change, it is also a consequence of change. The

acceptance of small family as a norm and the willingness to face the initial hazards of a shift
from the village to the city may be the function of increased aspirations may be the function
of increased aspirations of the population. The change in aspirations may in turn be traced
back to changes in the economy, polity, and or value system.

2.5 Conflict and protest

Conflict is one of the most important sources of social change in independent India. The term
conflict is used herein its widest sense and has two dimensions: individual - group and inter
group. Traditionally only the latter type is included under the rubric of conflict and the former
is termed as malintegration. If men are perfectly socialized they are constantly motivated to

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conform to social norms. But men are rarely perfectly socialized and this is so for two
reasons.

First, if socialization is too rigid, it leaves men incapable of dealing with unforeseen events;
and second, all socialization makes conflicting demands and therefore, produces some
hostility to socializing agents, thus providing a possible source of motivation for deviance. It
may also be noted that a second source of incompatibility is inherent in the nature of role
expectations. A specific instance or the repetition of an number of such instances over a
period of time may propel change.

Socialisation is the process to which all individuals in a society are subjected. This is an
ongoing process. Educational institutions are important agencies of socialization. Similarly,
the mass media ( the printed word, the radio, the television ) are important agencies of
socialization. It is important to remember here that these agents of socialization themselves
may sow the seeds of conflicts in the minds of the people, eventually preparing the ground
for change.

Conflict is inherent in all human societies, and yet this may not eventually lead to change. For
instance, both the European Feudal sytem and the Indian caste system contained strong
elements of conflict within them and yet these systems continued intact for centuries as they
also contained mechanisms for the systemic absorption, resolution or suppression of
conflicts. Inter-group conflicts, are of various types :some are mild and institutionalized,
others are violent and ‘ illegitimate’ and still others are endemic and submerged. All these
inter-group conflicts are capable of restructuring the existing relationship the existing
relationships between the groups involved thereby accelerating the birth of a new
equilibrium, that is change.

2.6 Education

Education is often viewed as an important source of social change. Education is a

transmission belt of tradition to maintain the status quo. The process of social change in itself
contains the seeds of social change on two counts. They are; First it emphasized certain
values such as rationality, scientific spirit, questioning mentality etc. Second as the spread of
education increases and as it reaches a larger proportion of the population, it becomes a major

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source of social mobility and consequently of change. The education system is not simply a
silent giver but also an active giver.

2.7 Industrial- Urbanisation

Industrial – urbanization is viewed as an important source of social change in the

contemporary world. Modern urbanization began in India with western colonialism and it
was widely held that the introduction of modern technology would substantially alter the
texture of Indian society. An important aspect of industrialization is the progressive
displacement of animate energy by inanimate energy. This invariably leads to the
displacement of human beings from various sectors of society.

Marx, for instance believed that the railways would dramatically change India’s caste system.
This is but an instance of the widely held view that if change is introduced in on aspect of a
society it is likely to affect other aspects too. But American Sociologist William Ogburn
pointed out that there could be ‘cultural lag’ in the context of change. Ogburn argued that the
change in the material dimension is quicker and the non- material aspects may not keep pace
with it.

3. LEGAL SYSTEM IN MODERN INDIA

The British rule introduced into India legal organizations not only to maintain law and order
but to protect the colonial interests in the subcontinent. The judicial system introduced by the
British was broadly based on Anglo – Saxon canons of justice in which the obedience to the
Rule and Law was emphasized. In due course Anglo – Saxon laws predominated in many
civil and criminal spheres, but in certain social fields such as property inheritance in the
family, partition and joint family interests (business, etc.), marriage, divorce, adoption,
succession, caste disputes, etc. many of the traditional legal norms were retained. The
legislative enactments during British rule introduced some modifications in the traditional
laws with a special view to grant autonomy to individuals in inheritance, etc.

The conspicous feature of the legal system referred to above was the dispensation of law
through the law courts. In the three major Presidencies, high courts and subordinate courts
(Sessions, District and Talaq Courts) were introduced. However, the privy Council of Britain
was the supreme legal institution of appeals from India. In the Princely States, especially the
progressive once such as Mysore, Baroda, Travancore similar courts were introduced by the

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rulers. Thus, Indian society witnesses the gradual spread of certain modern legal concepts
such as equity before law, right to abortion, etc. However within the framework of modern
law, the structural inequalities arising from disparities in caste and states have continued in
Indian society.

As important outcome of the modern legal system was the growth of professional groups
such as judges, lawyers, pleaders, etc. Many people received training in law and started their
practice in towns where the courts were located. As the Indian villages had difficulty in
understanding and relating to urban based law courts which were far away from villages, the
lawyers mediated between the former and the latter as interpreters of law. It may be noted
that during the colonial rule, there was no sharp separation between executive and judicial
roles. The separation between the executive and judiciary became nearly complete in the post
– independence period.

After Republic of India adopted the Constitution in the year 1950, judicature was
reorganized. The Supreme Court of India became the apex appellate body supported by state-
level courts such as high courts, district courts, etc. Besides, statutory tribunals were
established for revenue, labor, and other matters. The Law Commission of India was
established to suggest and recommend appropriate legal measures. The present legal system
rests not only on an extensive network of legal organizations but also on a growing corpus of
laws, precedents, etc. The legislative bodies all over the country are producing new acts and
amendments every years. For common people the modern laws have become nearly
incomprehensible.

During the British rule, participation in the legal system by the broad masses of people and
by the groups affected by it, was virtually unknown. However, during the freedom struggle,
people often protested against oppressive laws through public demonstration. In British India,
law was a “top-down” model and the “natives” were required to abide by it or face penalty.
Among the participants in the freedom struggle there was a hope that the legal system in free
India would rest on democratic norms. Despite this hope, domination by the elitist group in
post-independent India has continued. People’s participation is confined to certain local
contexts such as the operation of Panchayati Raj.

The representatives of people in Parliament and state assemblies wield “delegated authority”.
They seldom consult their constituents as to whether the proposed laws would be agreeable to
them. Of course, in a large, heterogeneous country the participation of people is hindered by

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demographic and geographic factors. The interest groups of the Western type where people
articulate their political needs have not yet emerged in India, expect in a few urban centers.
For the vast mass of people, modern laws do not seem to promise redemption from economic
and social tribulations. There is a widespread feeling that justice is manipulated by the rich
and politically powerful individuals and groups.

4. LAW AND SOCIAL CHANGE IN INDIA

Social change involves and alteration of society; its social 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, legal prohibition of untouchability in free India has not succeeded because of
inadequate social support. At the same time the law on the practice of untouchability has lent
recognition to those who protest against it. For instance, while in isolated cases individuals
have suffered, the organized protest by the deprived groups has reduced the extent of
oppression. The activities of Dalit Panthers in Maharashtra bring out this point clearly. Thus,
although law cannot bring about change without social support, it can create certain
preconditions for social change.

During the colonial period, laws were mainly directed towards maintenance of law and order
and protection of rulers’ interests. The Colonial perspective was limited to a few economic
and social aspects. For example, after the abrogation of east India Company in 1858 and the
takeover of India by British Government, social reforms were no longer initiated by the
rulers. The initiative for the few laws enacted, relating to marriage, property, etc., came from
the enlightened leaders of Indian society. Even the limited educational and administrative
reforms were made possible only by the Congress ministries which gained power in eleven
provinces in 1937-38.

After independence, the Constitution of India provided far reaching guidelines for change. Its
Directive Principles suggestion a blue- print for a new nation. The derecognition of caste
system, equality before law, and equal opportunities for all in economic, political and social
spheres were some of the high points of the Indian constitution. The problem in Indian
society is the non-fulfillment of constitutional directives, especially in respect of economic
improvement of the masses. While the country has made dramatic progress in particular

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sectors in heavy industries and agriculture, the dismal poverty of countryside remains largely
the same. Hope and disappointment at once confront the average Indian in contemporary
India. Some of the factors related to social change are referred below.

5. STATE INITIATED LEGAL MEASURES

5.1 Introduction of new institutions

There are three state-initiated legal institutions at present. These are the Nyaya Panchayats,
Lok Adalats and Legal Aid to the poor. The first two institutions, as mentioned earlier have
been introduced to supplement the existing judicial bodies. In the Northern belt, especially U.
P., Rajasthan and Bihar have experimented with Nyaya Panchayats for more than two
decades.

Although they have not been completely effective they have familiarized people with the
secular concept of law. They are an alternative to the former caste and village councils. They
have also succeeded in screening disputes at the village level so that excessive litigation is
avoided. But their main limitations are the paucity of resources, limited judicial powers and
also non-availability of legal minded people in villages, The success of Lok Adalats in the
tribal belt of Gujarat was possible because of dedicated work by Sarvodaya Volunteers,
jurists and an enthusiastic public. More recently, Lok Adalats are settling insurance claims
etc. in the metropolitan centers such as Delhi.

The legal Aid to the poor is complimentary to the Nyaya Panchayats and Lok Adalats. The
main reasons for introducing this are the paucity of lawyers in small towns and villages, the
increasing cost of litigation and the lack of awareness of law among ordinary people. The
deployment of lawyers at state expense has already taken place in number of states. If it is
successful, it achieves a dual purpose. On the one hand, it offers employment to trained
lawyers who are still struggling to establish themselves. On the other hand, it enables the
helpless individuals to get some settlement. The peasants, small traders, workers in small
industrial units where unionization has not taken place, domestic servants, casual labors etc.
can benefit immensely if legal aid is extended to all urban settlements and villages.

5.2 Legal reforms

The Law Commission of India (LCI) which came into existence in 1995 has been entrusted
with comprehensive terms of reference. These include not only the traditional spheres of law
such as Company Law, Civil and Criminal Procedure, contract Act, Stamp Acts, etc. but also

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the laws oriented to social change such as those related to the implementation of Directive
Principles, especially economic items such as cooperative credit, agricultural wages, tenancy,
etc. Besides, LCI has been expected to reform the existing social legislation or usher in new
laws with regard to weaker sections, bonded and contract labor, juvenile delinquents,
mentally ill and physically disabled.

While the Law Commission has modernized the existing laws in the traditional sphere “The
Lawyers Law” it has hardly taken steps to recommend appropriate legal changes in economic
and agrarian matters. It has been dominated by jurists and has taken a more or less purely
professional attitude towards reforms. According to Upendra Baxi, “Ideally, the LCI should
become both a statutory and a continuing agency, Ideally, its composition (both full-time and
part-time) must have the best juristic talent and should have representation from social
sciences, Ideally, it should have a multi- disciplinary approach, both at the level of the
secretariat as well as that of the Commission. Ideally, again, it must engage in a
comprehensive, sociologically oriented, systematic program to reform, not just of lawyers’
law but of legal institutions and processes. It ought to be a monitoring agency, a planning
body, for the future of the Indian legal system at the national level”.

At present, LCI has only attempted to bring about “piecemeal reform”; it has an ad hoc
approach to many issues rather than an integrated perspective. Some of the traditional system
of law like Hindu Dharma Shastras and the Islamic Sharia were responsive to changing
needs and circumstances. Hence, these legal codes have been interpreted to accommodate
diverse elements albeit within the framework of sacred authority. By contrast the Law
Commission which is formally constituted to recommend legal changes has not been
effective. The ineffectiveness of legal institution in meeting the needs of society has slowed
down the pace of social change.

6. PEOPLES PARTICIPATION IN LEGAL CHANGE

As yet masses in India have not been involved in the contemporary legal activities. For
centuries, the Indian masses have lived in the small and limited world of region, village,
caste, tribe or clan, where traditional legal norms were followed. Although the caste, village
or tribal councils often initiated changes to suit new circumstances, these efforts were
confined to limited circles. Today, the participation of people in development efforts is on a
much wider level. The Five-Year plans have offered blue-print for rural development. But the
weak response from people is a hindrance. The remarkable success of Lok Adalats in the

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Rangpur area of Gujarat in recent years has been mainly due to the intensive participation of
the people.

These Lok Adalats have explicitly related dispensation of justice to socio-economic process.
For instance, many land disputes and monetary claims have been settled expeditiously.
Freedom from the tension of a dispute has a positive effect on economic activity. Hitherto,
litigation in the courts has depleted people’s time and money and turned them away from
commitment to work. Extension of Lok Adalats to the other parts of the country, under the
guidance of jurists, government authorities and social workers will contribute to change and
progress. Similarly, the revival of old non-statutory bodies, wherever possible in a secular set
up, would supplement the work of Lok Adalats and Nyaya Panchayats.

In recent years, the public interest in litigation has increased. Social activists and voluntary
bodies have filed litigation in the court of law, although they do not stand to gain materially.
In Indian society, few people come forward to fight cases in the court, even if they have
suffered damage. Unless the victims come forward the matter never reaches the court. In such
a situation, the public interest in litigation promises a way out. Journalists, lawyers, social
workers have knowledge of the “seamy” side of life and they are in a position to approach a
civil or criminal court for appropriate action by the government. Of course, in this type of
litigation, publicity-seeking by individuals may be implicit to some extent. Nevertheless, it is
an effective weapon to uncover the scandals and deceptions through exposure in the courts of
law.

7. Globalisation and Right to development

Globalisation is the increasing interaction of people through the growth of the international
flow of money, ideas and culture. Globalisation is primarily an economic process of
integration which has social and cultural aspects as well. It involves goods and services, and
the economic resources of capital, technology and data. Advances in the means of transport
and in telecommunications infrastructure have been major factors in globalization, generating
further interdependence of cultural and economic activities.

The right to development is seen by us as a bridge between these two sets of rights. It is a
right that through its participatory nature guarantees the enjoyment of the individual civil
liberties. If a given state were too weak to grant enjoyment of human rights to its citizens, the

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international community would have to take steps to enable the state to do so. This dualistic
nature of ‘Right to development’ – a right within the state and between the states – is on the
other hand the biggest obstacle to be accepted by the international community, which fears
that it may be interpreted as meaning a ‘right to development assistance’.

CONCLUSION :-

Thus it is concluded that in ancient times the legislative action was not accepted and was
generally opposed to the social change and there was a lag of law behind social change. Law
plays an important indirect role in social change by shaping various social institutions, which
in turn have a direct impact on society. In Indian scenario the Abolition of Sati system,
Muslim women entitlement for maintenance, Free education now being a fundamental right
etc. are all examples of social changes. Use of law to bring about substantial social change
can also be found in modern Western societies. At the same time globalisation is a term
which refers to the emergence of an international network of economic systems.

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[19]
NATURAL LAW THEORY AND ITS PRESENT DAY RELEVANCE
Natural law theory is a philosophy of law that is based on the laws of nature. In
jurisprudence, the term ‘Natural Law’ means those rules and principles which are considered
to have emerged from the supreme source. This school of jurisprudence represents the belief
that there are innate laws that are common to all societies, whether or not they are written
down or officially enacted. It tells us that law is rational and reasonable. The natural law
theory reflects a perpetual quest for absolute justice. Therefore, it should not be misconceived
that natural law has a mere theoretical significance. It has a practical importance in ensuring
the fact that justice is done.
Law can be broadly classified into two kinds- natural law and man-made law. The former is
the higher and superior law. The latter is inferior and should emanate from the former.

CONTEMPORARY POSITION OF NATURAL LAW THEORY

With regard to the contemporary position of natural law, it can be inferred that “now natural
law is relative and not abstract and unchangeable. The new approach is concerned with
practical problems and not with abstract ideas. It attempts to harmonize the ‘natural law’ with
the variability of human ideals and takes into account the new legal theories putting emphasis
on society. To distinguish this new approach to ‘natural law’ from the old theories, the
former has been called ‘natural law with a variable content’. Stammler is an exponent
of Natural law with a variable content. According to him the idea of law is the
application of the concept of law in the realisation of justice. A just law is the highest
expression of man’s social activity.
In order to achieve justice, a legislature should consider the two principles of respect and two
principles of participation. The two principles of respect are that the content of a person’s
volition must not depend upon the arbitrary will of another. Two principles of participation
are that a person lawfully obligated must not be arbitrarily excluded from a community. Its
aim is the preservation of the freedom of the individual with the equal freedom of the other
individuals.
Prof John Rawls propounded the concept of basic principles of justice which is the
generalised means of securing generalised wants, which includes basic liberties, opportunity,
power and a minimum of wealth. With the aid of this principle Rawls tries to establish the
just basic structure.

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Contemporary natural law theories gain considerable advances in sophistication and
acceptability over the classical versions in three ways:
 They do not appear to depend on controversial metaphysical or theological theories.
 Some contemporary natural law theorists argue that the connection between law and
morality is necessary only at the level of an entire system- that legal systems may
contain particular laws that are unjust in some other way but that the system as a
whole must satisfy certain moral demands in order to count as legal.
 Other contemporary theories argue that too sharp a conceptual separation of law from
morality will force us to miss the essential nature of certain features of judicial
deliberation- e.g.: deliberation about constitutional rights.’
Thus Natural law played an important part in the development of modern law. Legal history
testifies that it was natural law which directly or indirectly provided a model for the first man
made law. Appreciating the contribution of natural law Roscoe Pound said, “the uncertainty
of the higher law is preferable to the arbitrariness and insolence of naked force”.

Despite the merits of natural law philosophy, it has been criticized for its weakness on
the following grounds:

1. ‘Ought to be’ may not always necessarily conform to the need of the society.
2. The rules of morality embodied in natural law are not amenable to changes but the
legal rules do need a change with the changing needs of society.
3. The concept of morality is a varying content changing from place to place; hence,
it would be futile to think over the universal applicability of law. It depends on the
society.
4. Disputes relating to laws of nature and morality cannot be subjected to judicial
scrutiny as the verdict may always be questioned since it is based on subjective
discretion of the judge.
Despite the above shortcomings, it cannot be denied that natural law has played a crucial role
in molding the law. Its significance lies in the fact that an unjust law may not last long and it
is bound to lose public support in the absence of obedience by the people.

NATURAL LAW PRINCIPLES IN ENGLISH & AMERICAN LEGAL SYSTEM

United Kingdom

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In England, where there is unwritten Constitution, the natural rights are called by different
nomenclature as ‘civil rights’, ‘civil liberties’, freedoms or individual liberties and ‘natural
law’ never flourished in the form of a theory, its principles found their place in the body of
law. The judicial control of administrative tribunals, recognition of foreign judgments, and
application of foreign law in case of conflict of laws are founded on the principle of natural
justice. Many concepts of the English Law such as quasi- contract, unjust enrichment, etc. are
based on ‘natural law’ principles.’ ‘The operation of rule of law in the English legal system is
an embodiment of English ideas of natural rights. The principles of natural justice
incorporated in the British administrative law are essentially based on the ideology of natural
law.’
United States

Even the American Legal System had been greatly affected by natural law theories. ‘The
‘Declaration of Independence’ reflects a great influence of the ideas of Locke and Rousseau
on it. It says that the rights of life, liberty and the pursuit of happiness are the inalienable
rights of men. The 16th U.S. President Abraham Lincoln had appealed to natural rights in his
affirmation of the equality of all human persons in defense of his opposition to slavery set the
precedent for subsequent American practice and when the Constitutional Amendments 13-15
banned slavery and enumerated the Constitution’s guarantee of the rights to life and liberty, it
was for the purpose of perpetuating the authority of constitutionally based natural rights.
Natural rights would persist as a guiding principle for political activists and thinkers in
twentieth-century America, as well. Martin Luther King, Jr., and the activists of the Civil
Rights movement invoked them in their arguments against racial discrimination and
segregation, though King also reintroduced Augustine’s formulation of natural law ‘iniusta
lex non est lex’: an unjust law is not a law and therefore cannot bind. Natural rights have
proved integral to the American theory and practice of government, and from Lincoln
onward, they have been placed at the center of American constitutionalism.

INDIAN LEGAL PERSPECTIVE ON NATURAL LAW THEORY

The modern Indian judicial system is being found on the British pattern and the fine
principles of equity, justice and good conscience and natural justice occupy an important
place in the Indian Law. The higher values of universal validity, righteousness, non- violence,

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etc. were already incorporated in the ancient legal system. During the medieval and British
period in India, natural law found its expression in the religious preachings. It suffered a
temporary setback during the Mughal rule in India. Then came British rule in India. They
applied doctrine of justice, equity and good conscience and started codification of law in
order to ensure certainty, uniformity and rationality of laws.
As a result of long British rule in India, certain principles of natural law enshrined in the
English law automatically found place in the Indian law which was broadly modified on the
British laws. The principles of natural justice, doctrine against bias, judicial review, reasoned
decisions and many other precepts of administrative law are based on principles of natural
law. The law of trusts, specific relief, doctrine of election, rule against perpetuity etc, have
been borrowed from the English doctrine of equity, justice and good conscience.
The Indian Constitution embodies a number of principles of natural law in Preamble, Part III
(Fundamental Rights) and Part IV (Directive Principles of State Policy). Principles of Natural
Justice also find place in the administrative law of the country where the High Courts and the
Supreme Court can exercise control over the administrative and quasi-judicial tribunals and
one of the grounds on which orders passed many be set aside is the violation of the principles
of ‘natural justice’. Art. 311 of the Constitution provides for adequate protection to civil
servants against arbitrary dismissal, removal or reduction in rank is also based on the
principles of natural justice.
In Menaka Gandhi v. Union of India, the Hon’ble Supreme Court extended the scope of
natural justice principle which was earlier confined to only judicial and “quasi-judicial"
enquiries to purely administrative actions.
Further the Basic structure doctrine propounded by the Supreme Court of India in the
landmark case of Kesavananda Bharti v. State of Keralais considered as the light bearer of
natural law in the Indian Constitution. This doctrine furnishes the best illustration of
judiciary’s zeal to incorporate the principles of natural law in the constitutional jurisprudence.
Adopting the 20th century revivalist approach to the natural law philosophy, the Apex Court
ruled that fundamental rights are not absolute and immutable but they are relative in nature
and changeable in order to build a ‘just’ social order. The Supreme Court affirmed the
doctrine of basic structure in Minerva Mill Ltd. v. Union of India. The Court held that
fundamental right enshrined in Part III and the Directive Principles of State Policy contained
in part IV of the Constitution, taken together constitute the core of the Indian Constitution
and form its conscience. The doctrine has given a new shape to the Indian Constitutional

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mechanism by postulating new ideals and values in order to strengthen the cause of
democracy. It has become a safety net of individual liberty and social justice.
Further the setting up of the Administrative tribunals, Family courts, Consumer redressal
forums, free legal aid services, speedy trial, Lok Adalats, Human rights commissions, etc.
are directed towards promoting the cause of justice and providing speedy relief to aggrieved
persons against injustices. The Supreme Court’s contribution to human rights jurisprudence
through judicial activism and public interest litigation has revived people’s faith in justice
delivery system in India. These new developments manifests that the principles of natural law
and natural justice embodies higher values of life, liberty, equality and justice have gained
increasing importance in the Indian legal system so that a social order with just and humane
conditions may be accomplished as contemplated by the framers of the constitution.

CONCLUSION

Natural law principles provide some basic and inalienable rights on an individual that cannot
be waived under any circumstances. It has played the role of harmonising, synthesising and
promoting peace and advancement of justice in different periods and protected public against
injustice, tyranny and misrule. Therefore, it can be concluded that no one should be deprived
of his natural right that is provided to an individual by nature. Though the use and
applicability of natural law principles varies from country to country these principles have
evolved and incorporated from time to time according to the advancements and changing
needs of the society. Natural law serves as a test for validating the man-made law. Natural
law philosophy stresses ‘what ought to be done’ (i.e. lex feranda) and not necessarily ‘what is
done' (i.e. lex lata). In practice, the judiciary interprets what the law is and not natural law.
Unless the principles of natural law are promulgated into law, their violation cannot be
legally punished. Hence upkeep of natural law principles is of great importance be it for
giving a judgment or for guiding the basic structures of the Constitution or for the benefit of a
society.

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