DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, ANDHRA PRADESH

SUBJECT

JURISPRUDENCE

RESEARCH PAPER TITLE

A COMMENT ON THE SOCIOLOGICAL JURISPRUDENCE IN LIGHT OF RECENT

DEVELOPMENTS

NAME OF THE FACULTY

Prof. BAYOLA KIRAN POOSARLA

NAME OF THE CANDIDATE

SAHAL SHAJAHAN

ROLL NUMBER

l8LLB131

SEMESTER –III

DIVISION-B
Acknowledgments

“ I, SAHAL SHAJAHAN, feel myself highly elated, as it gives me tremendous pleasure to come out with
work on the topic, A COMMENT ON THE SOCIOLOGICAL JURISPRUDENCE IN LIGHT OF
RECENT DEVELOPMENTS.

I am thankful to my faculty, Asst.Prof. BAYOLA KIRAN, who gave me this topic. I am highly obliged
for his guidance in doing all sorts of researches, suggestions and discussions regarding my project topic
by devoting his precious time.

I thank to the DSNLU for providing access to all available journals and websites for research. And last
but not the least I thank my friends and all those persons who have helped me in the completion of this
research paper.”

Sahal Shajahan

 Semester III

Sec. B (Roll No. l3l)

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 TABLE OF CONTENTS

1) Introduction……………………...………………………………………..…04
2) Social Jurisprudence…………………………………………………………05
3) Sociological Approach ………...…………………………………...……….05
4) Characteristics of Sociological Jurisprudence…………………………….....06
5) Emergence of Sociological Jurisprudence……………….…………………..10
6) Sociological jurists and legal theories…………………….………………….11
7) The emergence of Social Jurisprudence :
United States of America vis-a-vis India………………………….………….12
8) Role of Supreme Court in upholding Social Jurisprudence……....…………..13
9) Cases where Apex Court has upheld Social Jurisprudence…….…...………..14
10) Case Laws…………………………………………………….……………….15
11) Conclusion………………………………………………….………………....16

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INTRODUCTION

In ancient times, custom was considered the main source of law. Indian personal law originated
from customs and traditions. Later, when the Indian Constitution was enacted in l950, the
inherent rights of individuals were recognized, and the state regarded the responsibility for social
welfare as the guiding principle of national policy. Recently, the Supreme Court of India has
recognized and developed a new legal principle called "Social Law", in which the court
emphasizes social rights rather than political rights. Since the introduction of public interest
litigation in l979, the informal connection established by judges and activists to protect social
rights has been promoted.1

When the government used illegal detention of politicians and social activists to restrict their
rights, the l975 state of emergency played an important role in lifting social rights. After the
emergency, two famous judges, VR Krishna Iyer and P.N Bhagwati, believed that it was
necessary to provide access to justice for those socially disadvantaged groups who were unable
to pay for justice due to various obstacles. So the concept of PIL was born, which gave rise to
judicial activism. PIL marks an important presence in social change, and brings a fledgling
concept of social law, rejecting the laissez-faire concept of traditional law. Nevertheless, the
Supreme Court recognized the concept of social jurisprudence in several other cases where the
outline of social jurisprudence was discovered.

The decriminalization of LGBT marriage and the abolition of the National Judicial Appointment
Commission are examples of social precedents that judges use to recognize social rights. In this
article, the author shows how the Supreme Court applies the drawbacks of social jurisprudence
in the judicial system through judicial activism, which sometimes indicates a threat to the
"separation of powers" between the parliament and the power of attorney.2

1
https://blog.ipleaders.in/social-jurisprudence-supreme-court-india/
2
IBID

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SOCIAL JURISPRUDENCE

Social jurisprudence is usually called sociological jurisprudence, and it was first proposed by
Roscoe Pound in an article in l9ll. He is a prolific writer and dean of Harvard Law School. The
American Realism School is the brainchild of Roscoe Pound. This philosophical method of
jurisprudence is to examine the social impact of legal systems, doctrines, and assumptions. This
principle examines the social aspects of the law and verifies its sociological impact on
substantive and procedural law. He emphasized the practicality of the law, and proposed that the
function of the law is to satisfy people's needs to the utmost extent and resolve individual
contradictions in society. This sociological jurisprudence movement emerged in an era of
progress and development. Pound called it "a movement that regards pragmatism as a legal
philosophy", and its purpose is to provide legal reforms and social changes. Formal
jurisprudence uses the logic of the principle of priority of specific assumptions, but social
jurisprudence advocates the use of social science to formulate legal rules and advocates giving
judges the freedom to exercise justice in specific cases.3

NATURE AND SCOPE – SOCIOLOGICAL METHOD

The sociological method of studying law is a reaction and resistance to the analytical and
historical schools, which believe that law is an autonomous system-the first to derive the
effectiveness of sovereign rights-legislators, and the second from slowness And the flow of
silence. Historical and cultural process and power. Sociological methods regard law as a social
fact or reality to shape, shape and change society, and to satisfy its needs, expectations and goals
through law. The relationship between law and society, the study of community and social
phenomena, the interests of groups or individuals, and their realization and realization through
law are the primary concerns of law. The sociological method of studying law has recently
emerged. Other schools of thought are more concerned with the nature and source of law, rather
than the actual work, function, and social purpose of the legal effort. All jurists who define laws
related to society according to the purpose served by the law, the interests satisfied by the law,
and the common interests that the law seeks to realize, so they make the law a tool to control
3
ROGER COTTERRELL, THE SOCIOLOGY OF LAW: AN INTRODUCTION 49-55 (London, Butterworths)
(2012).

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society and social change, and group them together. As a jurist belonging to the School of
Sociology and Law.

SOCIOLOGICAL JURISPRUDENCE- CHARACTERISTICS

Characteristics mainly seen in Sociological Jurisprudence are as follows:

1. Sociology lawyers care more about the operation of the law than the nature of the law.
They believe that the law is an authorization guide for decision-making, judicial and
administrative procedures, rather than the abstract content of authorization rules.
2. It believes that law is a social system that can be implemented consciously, or it can be
changed, modified or retained based on experience. In other words, it combines the
analytical methods and historical methods of legal research.
3. Sociological jurists emphasize social goals, social goals and expectations, that is, the
sanctions and coercive qualities of the law serving the law.
4. Sociological jurists view legal systems, doctrines, and precepts from a functional
perspective, and regard the form of legal precepts as a means, just to satisfy the best
interests of most people.4

Background

The sociological methods of legal research in the late l9th century did not emerge in isolation.
This is a response to the formal and boring methods of analytical jurists and the pessimistic
methods of historical jurists. There is an urgent need to study law not only from an abstract
perspective, but also from its function and practice. In addition, due to economic and social
conflicts at the beginning of the 2oth century, people have more and more doubts about the
eternal principles of natural law, and until that moment, the concept of harmony is placed in front
of individuals.

These different approaches seem to be obstacles to legal reform, social change, and economic
justice. The inalienable natural rights theory is now regarded as an outdated expression of
laissez-faire philosophy. This has led countries to expand their scope of activities to the fields of
health, insurance, education, old age protection, and other forms of social and economic well-

4
Supra Note 4 At 3

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being. Therefore, a new method of studying law is related to the purpose, purpose, and function
of law, ordering and regulating its purpose, purpose and function are ordering and regulating its
purpose, purpose and function are ordering and regulating its purpose, purpose and function.

Order and regulate their purpose, purpose and function to regulate and regulate the relationship
between individuals and individual groups, which is described as sociological jurisprudence.
(l798-l85l). He is known as the founder of sociology as a science. He emphasized empirical
methods such as observation and experiment to study society. The task of sociology is to provide
methods, tools, and foundations for deliberate and realistic assessment of social phenomena
interacting in society. Reform, social progress and general welfare. It would be useful to
elaborate on the contributions of important jurists to the growth and development of the School
of Sociology and Law.

Scope

The legal thought of the sociology school is the continuation of the continuous research process
of the origin of the law initiated by the historical school. This vision of the sociology school goes
hand in hand with legal knowledge about society: what it is doing; what it is doing; and what it
should do. The sociology school fulfills the mission of the historical school and rejects the
formal and logical legal thought considered by the positivists on the grounds that formal law is
only a portrayal of law. Indeed, the concentration on scientific research made law a prominent
place in new research. In the l9th century, many outstanding sociologists from Europe (and the
United States), especially Germany, were excavated, and they began to consider newly
discovered legal research. Society serves as the key to a better understanding of law than it can
get from natural law schools and positivists. 5

The contributions of various sociological persuasion scholars and jurists highlight several points
that should be mentioned: a. This law is not the only one, but only one of the norms of social
control; b. The current law cannot solve the current social and economic problems; C. The law in
books and regulations containing formal rules, legislation and instructions on specific topics is
not where the real law exists in society; d. The law itself is not an absolute and static system of
rules, but is related to time, place and Socially related; there is something called "social justice".

5
http://www.legalservicesindia.com/article/2190/Sociological-Jurisprudence.html

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However, opinions differ greatly on what constitutes social justice and its achievements. Comte
once said that the advancement of knowledge can only be carried out through "observation and
experimentation" and provided a hierarchical classification of social sciences.

Despite the inherent difficulties, Comte found that the application of scientific methods to
sociology was very effective. He divides sociology into two parts, social statics and social
dynamics, all of which stem from his description of sociology as the science of social order and
progress. He believes that society is an object of continuous development, and if viewed from a
scientific point of view, it can use its growth for one purpose: progress. The goal of the sociology
school is to scientifically explain the process of determining the variables that society operates in
terms of law, and vice versa. When the attitude of the law and the state appeared, the importance
of the sociological law school became obvious. It compares. The state’s previous attitude was to
limit itself within the scope of application of law and order. Therefore, it strives to achieve social
stability by implementing norms that regulate the relationship between individuals and society
and between individuals and individuals. This may be useless in many ways (we will evaluate).
The charm of sociology lies in this: the failure of the law and the state's notions of justice and
laissez-faire.6

Objective

The goal of the source of legal sociology is to use these tools—legal or extra-legal tools, as well
as technologies that promote the harmony and balance of social interests—to solve urgent social
problems. In addition, the jurists of the sociology school refused to treat analytical jurisprudence
and historical jurisprudence as conceptual jurisprudence, and regarded law as a tool to serve
individual leaders in society. This chapter reports how the school has gone through various
stages and how it differs from other law schools.

Main research areas:

the mutual influence of law and society. Sociology includes a series of methods implemented
from the end. last century. These methods are more diverse than unification. The main and
common research field of jurists who adopt this approach is the interaction of law and society.
This method uses the law as a tool for social progress. Therefore, he also cares about values.
6
Supra note 5 at 8

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Many jurists believe that in the sociology of law, the relationship between positive law and the
ideals of jurists should also be studied. Many highly authoritative jurists have been their
definition of sociology of law, but as mentioned above, a single definition cannot cover extensive
research under this method. In order to understand these methods in an appropriate historical
context, it is necessary to discuss the opinions of jurists representing various methods.

Disadvantages of Sociological Jurisprudence

As we all know, the relationship between individuals, society and the country is never static.
They always change with the needs of the times and the needs of society. As a result, various
theories about their relationship have also changed. For example, the custom of primitive society
is only a kind of social sanction. Then came the supremacy of the church, the priesthood. In
order to counter the growing influence of the church, the secular state has emerged as a powerful
force to dominate all other institutions. The omnipotence of the country brought about a period
of rebirth, and jurists began to think about the freedom of the people and their rights and
freedoms. This led to the political turmoil that led to authoritarian rule, namely Nazism in
Germany and Fascism in Italy. Therefore, it is necessary to re-examine the legal theory in order
to maintain a balance between the state, social welfare and personal interests. Finally, people
understand that the socialization of laws and legal systems may better serve public and social
interests. Therefore, through the synthesis of historical and philosophical movements and
comparative studies of legal systems, a comprehensive method of law emerged through the
evolution of a new legal philosophy called the Sociology School.

Sociological Jurisprudence - Emergence

The emergence of the School of Sociology and Law is mainly due to the following factors. They
can be summarized as follows:

i) The spiritual bankruptcy of analytical methods that meet the social needs of modern
society
ii) The conflict between personal interests and social interests and the need to reconcile
them
iii) The link between the law and society

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 iv) The work of the law Early pioneers of interest, namely Bentham, Renner, Weber and
others.7

Theory of Interests

Working diligently to implement the sociological law program, Pound believed that the first
problem of society was to make the theory of profit a functional part of the legal system. The
development of this theory went through two stages. Legal admission was made in 1919, and a
rating or interest rate plan was announced two years later. Pound claims this is his most valuable
contribution to the law. He recognized several well-founded criticisms and vigorously defended
them as the most worthy tool for developing powerful "social engineering." The premise of law
consists of five general provisions on law, which are considered the basic beliefs of all valid
legal principles. Can understand or contain positive law, both civil and criminal. This is based on
Pound's human nature and his behavior in interpreting decisions of the US Court of Appeals. and
presents his views on the legal ideals of our society. The relationship between legal assumptions
and interest rate plans is discussed later.8

Theories of Sociological Jurist

It is impossible to discuss theory with all legal sociologists. Today's social relationships are more
complex. The concept of the state and its relationship to the individual have changed
significantly. New explanations have been given for these changes, some based on other political
theories and others based on partial descriptions of the law. Some modern theories are nothing
more than an analysis of the legal system of the represented country. Some classify these lawyers
as Nazi, Fascist, Soviet, Communist, or American. The technical and complex mechanisms of
working with domestic law and the growing importance of international law are also discussed in
the sections "School of Realism", "Pure Theory of Law" and "Theory of Communism". ...

Indian Position and Sociological School

7
Brian Z. Tamanaha, Sociological Jurisprudence Past and Present, 45 LAW & SOCIAL INQUIRY 493–520 (2020).
8
“Understanding Jurisprudence”; Wacks, Raymond; 3rd Edition; pg 166

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In the case of India, the school of sociological law is very important for the achievement of the
social and economic goals of the society. Humanitarian law is consistent with the general needs
and goals of social and personal interests. But it wasn't until 1947 that judges, lawyers, and court
administrators looked around when drafting new laws. The pace of social change was very slow,
either because the laws were adopted analytically by the British Parliament, or had nothing to do
with the life of the Indian people and had nothing to do with it. The role of judges is not to detect
“important and unclear beliefs” or “emotional needs” of society, but to interpret the law in a
logical manner, regardless of considerations of social justice.

The law is mainly imposed from above. It has no roots in the land of India, and its language is
also foreign. Since l947, the view of the law itself has changed. India was free and passed a new
constitution with a view to establishing social, economic and political justice. In order to achieve
these established goals, Indian planners introduced an economic planning system in India to
promote the well-being of the people by ensuring and protecting a social order as effectively as
possible, in which justice, social, economic and political will Inform everyone of the National
Life Agency. Therefore, the country has formulated new social and economic policies to achieve
the above goals. For the public interest, the old method of legal analysis is obviously abandoned
because it is unnecessary, untrue and inconvenient for the emergence of a new social order.
Therefore, in order to achieve peaceful social change through the law, a new sociological method
is needed to reconcile conflicting social interests and values.

Sociological Jurisprudence- Emergence : U.S.A and India

The emergence of social law can be traced back to the violation of workers' rights by the state
during the American Civil War. This problem existed until the 20th century, when the law was
hostile to labor protection, and judges interpreted it narrowly or declared it unconstitutional. The
defenders of social law rejected the judicial response to social legislation.9 Pound proposed the
theory of social engineering, in which justice, legislation, and parliament must come forward to
strike a balance between public, private, and social interests. In the United States of America,
such rights as the right to clean air, the right to food, and the right to minimum economic security
9
Ibid

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are included in such rights. Neither the US Constitution nor the Universal Declaration of Human
Rights considered these types of rights. Such rights are like the inherent freedoms of citizens. In
India, the Constitution stipulated in Article 5lA of the Guiding Principles for National Policy
gives the state the obligation to provide its citizens with social, economic, and political justice.

The rise of social jurisprudence can be traced back to the emergency period, when the civil rights
of social activists and journalists were imprisoned and subjected to police brutality. After the
emergency occurred, the judges noticed this problem and proposed the concept of PIL. PIL uses
Article 32 of the Indian Constitution to open up a broad path of judicial activism for the poor
who cannot pay for justice. Later, the Supreme Court of India began to recognize the broad rights
set out in Part III of the Constitution. Human rights include "traditional freedom" and "right to
survival". Traditional freedom stems from protests against repressive political systems, while the
right to survival stems from protests against social and economic systems. In Minerva Mills v.
Union of India, the Supreme Court recognized the principle of harmony and balance between
fundamental rights and the guiding principles of national policy, and supported it as a basic
feature of the constitution. When fundamental rights are threatened by politics, the Supreme
Court respects these rights. On the other hand, when the right to survival is threatened by social
and economic systems, the Supreme Court must foresee the protection of these types of rights. In
the case of violations of the right to life rather than traditional freedom, the conscience of the
judiciary needs more attention.10

Role of Supreme Court in upholding Social Jurisprudence

The Supreme Court played a very important role in shaping the social jurisprudence in the Indian
judicial system through "social change." However, these social changes were introduced at the
same time as the Indian Constitution was enacted and the inequality was abolished by inserting
Article l5 of the Indian Constitution. Anglo-Saxon law was imposed on the Indian legal system
by the British, and there were written criminal and civil laws in the British period. Returning to
the role of the Supreme Court, the Supreme Court has been describing the "unlisted" rights in

10
Supra note 7 at 11

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various cases and expounding the scope of basic rights from time to time. In the past, it was used
to protect the right to survival, and economic and social systems were used to restrain it, but
later, after the emergency in l978, when the concept of PIL was born, judicial activism was
released, and traditional freedom was also considered important . government. court.11

Cases where Apex Court has upheld Social Jurisprudence

Striking down of Section 377

In 2018, the High Court partially overturned the provisions of Article 377 of the Indian Penal
Code. The regulations of this section are gender-biased, and voluntary sex between LGBT
communities still cannot be enforced. Judge R.F Nariman stated in his ruling that the “Yogjakarta
Principles” have injected vitality into Article 14 of the Constitution. This principle is a document
on human rights in the field of sexual orientation and gender identity, and is the result of an
international conference of Indonesian human rights organizations. Therefore, the provisions of
Article 377 run counter to Articles 14 and 21 of the Constitution which recognizes the right to a
decent life. When the Supreme Court decided on the constitutionality of Article 377 (Colonial
Law), it applied sociological methods to jurisprudence instead of traditional jurisprudential
methods.12

Abolishing triple talaq and protecting the rights of women

The Supreme Court of India abolished the Muslim triple talaq with a majority vote of 3:2. The
majority opinion reflected by the court held that the “triple talaq” is a criminal practice that
violates the basic rights of women under the Muslim religion. However, two judges including
CJI Judge J.S Khehar believed that although this practice is arbitrary and guilty in theology, it is
part of the "personal law" governed by Shia sects. The focus of the judges is different in that in
the same trial, most people use social methods to defend women's rights. Modern progressive
society seeks "equality" and eliminates the long-standing "discrimination" in a patriarchal
11
Supra note 4 at 13
12
https://blog.ipleaders.in/social-jurisprudence-supreme-court-india/

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society. On the other hand, minors use traditional methods to interpret it as complete, because it
is governed by personal law and is not within the scope of Article 13. Therefore, the social
jurisprudence method of the Supreme Court upholds the basic rights of women and can overturn
the arbitrary practice of the triple talaq under the Muslim personal law.

Migrant Crisis in the Covid-l9 pandemic

The COVID-l9 pandemic has revealed the government's failure to protect the livelihood rights of migrant
workers returning to their places of origin. The media and print media are full of images of workers
returning to their places of origin on foot, some of which were even destroyed by trains. When PIL was
accused of the government’s failure to make arrangements for workers, the Supreme Court denied
interfering in government work in the first instance. Similarly, at the same time, the Madras High Court
and the Andhra Pradesh High Court also noticed similar things and notified their respective state and
central governments to arrange for workers to be dispatched.

Back to their respective places, in a dignified way. Subsequently, following criticism from the media and
multiple requests from defenders, the Supreme Court took note of the matter and notified the government
to make the necessary arrangements. In PIL, judicial radicalism is proposed to protect the "right to
survive" of vulnerable groups. , To protect them from any type of invasion by socio-economic
institutions. However, in this case, the High Court adopted a different approach to the issue in the first
instance than CS, which previously refused to notice the issue by excluding its own intervention in
administrative actions. The sociological approach of the courts made the government succumb to the
immigrant’s right to subsistence. The DPSP recognizes that the state is a welfare state and they fight for
the social and economic justice of citizens.13

CASE LAWS

Justine Pallivathukkal Vs State Of Kerala

13
Ibid

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The Kerala state government brought a classification in the minority reservation for merit cum
scholarships. The classification was 80:20 rule which states that 80% of seats goes to minority
muslim community and 20% goes to minority Lation Catholics and converted Christians.

The petitioner filed a writ petition against this rule and High Court decided that the rule cannot
be legally sustained as it gives more preference to the Muslim Community and minority
reservations or any government rules should not be favoring any particular community as we are
a secular state and a nation including wide variety of community followers.

Here the court displayed Sociological Jurisprudence by deciding against the government rule for
greater good of all the citizens and not a particular community.14

Ajmal Ahmed vs. Union of India

The division bench of judges S. Manikumar (CJ) and Shaji P. Chaly (J) stayed the orders of
Lakshadweep Administration to shut down dairy farms and ban meat and chicken from the mid-
day meal menu.

The Bench stated that, “ There cannot be a dispute that National Programme of Miday Day Meal
in schools, Annual Work Plan and Budget 2020-21 has to be implemented by Union Terittory of
Lakshadweep and viewed in the angle, prima facie, we are of the view that switching over to a
different menu, with the exclusion of chicken and meat, would run contrary to the National Plan,
especially, when it is constituted with the avowed object of ensuring the physical and mental
health of the children.”

Here the Kerala High court took the legislatives matter into hand where there was a possibility of
the individuals interest or the interest of a community was being forced on the people of
Lakshadweep by administrator by misusing his power. The Court intervened in the matter of
executive, acted like an activist for the securing the social rights and fundamental rights of the
citizens.15

14
https://www.livelaw.in/top-stories/kerala-high-court-stays-2-controversial-orders-of-lakshadweep-administration-
praful-kohda-patel-176110
15
https://www.scconline.com/blog/?p=250268

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CONCLUSION

The evolving principles of social law have played an important role in protecting the human
rights of citizens. Faced with the arbitrariness of the state, the responsibility of safeguarding the
basic rights of citizens falls entirely on the judges of the Constitutional Court. However, many
jurists disagree with the nuances of social jurisprudence and affirm that the legislature and the
judiciary have their own clear areas. While protecting the basic rights of citizens, the judiciary
interferes with the legislative power through excessive use of "judicial activism", which will
hinder the principle of "separation of powers", resulting in a vicious relationship between the
government and the judiciary. Therefore, sometimes, the judiciary must insist on "judicial
restrictions" depending on the situation. It all depends on the prudence of the judge. Protecting
the survival rights and traditional freedom of the disadvantaged class in a balanced way will
shape the traditional legal methods used by judges.

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