MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Honours in Adjudication and Justicing) Five-Year Integrated Degree Course

Year-I, Semester-I: Academic Year : 2021-2022
Second Open Book Assessment, December-2021

Course Code and Name: 2.3 Law and Society

Name of Student: Shrushti Taori UID: UGJ21-49

Answer 1.
It was around the 1930s that some American jurists raised their voice
against the already prevailing concept about how judges make decisions. They presented a
new theory which then became popular. The two-most persuasive theories of how judges
arrive at the decisions are Legal Formalism and Legal Realism -
a. Legal Formalism -
It is the theory which says that the Judges apply already established uncontroversial
laws to the fact to come up with a just solution. It has broken down the process into
three different elements - ‘Rule’ (R), ‘Fact’ (F) and ‘Decision’ (D). These three are
related to each other as R*F = D.1 Inferentially, Formalist approach is primarily based
on the presence of law and other objective elements, unlike Realism. “Formalism
enables a commentator to pronounce the outcome of the case as being correct or
incorrect, in approximately the same way that the solution to a mathematical problem
can be pronounced correct or incorrect”.2
b. Legal Realism -
It says that the judge, even before applying the laws, forms a decision based on his
moral and intellectual sense and then backs the conclusion by several legal provisions
including statutory laws and precedents. This Moral and Intellectual Sense which
forms a primary element in Judicial Decision Making is known as ‘Judicial Hunch’.
Judge Hutcheson defines Judicial Hunch as -
“[A]nd brooding over the cause, [the judge]
waits for the feeling, the hunch - that
intuitive flash of understanding that makes
the jump-spark connection between

1 Jerome Frank, THE LAW AND THE MODERN MIND, 1st ed. 1930, pp. 648.
2 Richard Posner, “Legal Formalism, Legal Realism and The Interpretation of the Statute and The
Constitution”, CASE WESTERN RESERVE LAW REVIEW, Vol. 37 No. 2 1986, pp. 181.

1
 question and decision and at the point
where the path is darkest for the judicial
feet, sets its light along the way.”3
Hence, the presumption that a judge is meant to be unbiased isn't enough to keep a jurist from
acting on his or her personal biases while disposing off a legal case. 4 The Judicial Hunch
consists of infinite little factors like Judge’s lifetime experience and even like persuasive
skills of the lawyer in the court. This makes Judicial Decision secondarily based on principles
of law but primarily on this Judicial Haunch.
This set of Judicial Hunch which defines Legal Realism can be categorized
in four different ideas -
1. Law Protects Powerful Economic Interests First
2. The Outcome of the Legal Dispute is Determined by the Judges’ Morality
3. Since Judges can Interpret the Law, They Should be Motivated by the Public Good.
4. Since Lawyers Can Predict How A Judge Is Going To Rule (By Examining The Past
Cases), They Should Use Their Forum Wisely.
“Critical Legal Theory extracts its ideas from these four ideas of legal
realism. It is however mostly based on the first idea. Critical legal studies (CLS) is a theory
that claims the law is inextricably linked to social concerns, and that the law has inherent
social biases. CLS supporters believe that the law protects the interests of those who write it.
As a result, CLS claims that the law promotes a power dynamic that benefits the historically
wealthy while disadvantages the historically disadvantaged. CLS discovers that the affluent
and powerful utilise the law to oppress others in order to retain their position in society. Many
in the CLS movement aim to overthrow modern society's hierarchical institutions, and they
see the law as a means for doing so.”
Since 1970, a group of new legal theories has emerged with the goal of
criticising not just specific legal rules or results, but wider systems of traditional legal thought
and practise. The prevalent legal theories and concepts, according to critical legal experts,
perpetuate patterns of unfairness and dominance by whites, men, the elite, employers, and
heterosexuals. The "Crits" contend that current legal theory pretends to provide unbiased and
objective treatment of claims while protecting power systems from radical rethinking. Critical
theorists further argue that, despite the law's claims to provide justified, definite, and

J.C Hutcheson, “The Judgement Intuitive: The Function of ‘Hunch’ in Judicial Decision”, 14 CORNELL L.Q (1929), pp. 276.
3
4 Supra Note 2 at 844.

2
controllable displays of power, law fails on each of these dimensions, mystifying outsiders in
an attempt to legitimize the results in courts and legislatures.
The justice-dispensation system, which basically determines and constraints
the core notion of constitutional justice, requires free and equal decision-making. To put it
another way, preserving the Rule of Law requires free and equitable decision-making. This
necessitates the Judge constantly policing the line between what is and is not within his/her
authority to rule, as well as deciding all cases in a way that never disregards both parties'
subjective assessments. Similarly, the Rule of Law has a strong stand in India which falsifies
the dialects of the CLS to some extent. If one critically analyses the above-mentioned
argument of Critical Legal Studies Movement from the perspective of Indian Legal System, it
is majorly based on the Article 14 (Right to Equality) and Article 15 (Right Against
Discrimination) of the Indian Constitution -
1. Article 14 of the Indian Constitution -
The Article 15 of the Draft Constitution, 1949,5 established the principle of
Equality. It had two provisions, that of Right to Life and Right to Equality which
was segregated in The Constitution of India, 1950 under Article 14, which established
Rule of Law and Article 21, which established Right to Life and Liberty. Article 14
of the Constitution of India, 1950 must be read as -
“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”6
It consists of two provisions - ‘Equality before Law’ and ‘Equal Protection of
Laws’. Equality before law is a negative concept that talks about the action prohibited
by the state, i.e., the state shall ‘not’, and it talks about the more generic concept of
Equality, unlike Equal Protection of Law. Equality before Law is a hard-core concept
brought from the British Constitution where it says that everyone, irrespective of
anything, is equal in the eyes of law. It establishes the supremacy of law over the
governing body and is based on the principle of “Lex is Rex”. It was brought with
the objective to make a uniform implementation of law, an equal law with equal
benefits and equal penalties for every citizen of the country irrespective of anything
else. Another provision is that of Equal Protection of Laws which takes several
subjectivities into account. This is a positive subject which deals with a more specific
definition of Equality. This was brought from the American Constitution which

5 Article 15 of The Draft Constitution of India, 1949.

6 Article 14 of The Constitution of India, 1950.

3
 inferentially says that it is not necessary to have a universal application of law and
hence, equality must be dealt subjectively, i.e., under similar circumstances. But
under different circumstances, equality should not be appealed. It mandates the
classifications of the cases on a rationale and appropriate basis for the better
implementation of law and public welfare at large.
In order to protect the clause of Equal Protection of Laws from the undue
advantages, the Court, in the case of State of Bombay v. F.N. Balsara 1951, 7
established two tests -
1. Intelligible Differentia - This test asks for an intelligent reason for the classification of
the comparing groups.
2. Rationale Nexus - This test asks to establish a reasonable nexus between the
basis of the classification and the desired objective.
Further in E.P. Royappa v. State of Tamil Nadu 1974 8 The Supreme
Court
amended the concept of two tests because it acknowledged the fact that there may be
cases which, despite fulfilling both the criteria, still serve arbitrariness. Arbitrariness
and Equality could not go hand-in-hand. A new doctrine was formed with a view,
“Equality is a dynamic concept, it cannot be cribbed, cabined or confined with
traditional limits.”9
Article 15 of the Draft Constitution, 1948 brought the concept of Equal
Protection of Law, which establishes the concept of “Likes should be treated alike”,
i.e., the concept of equality must not be absolute, rather flexible. Hence, this objective
was also found in Article 9 and Article 10 of the Draft Constitution, 1948 where the
state was prohibited to discriminate against people based on the basic things which
were not based on any rational classification.
2. Article 15 of the Indian Constitution -
Article 15 of the Indian Constitution, after several amendments finally prohibits all
the discrimination against sex, caste, race and place of birth. After the formation of
draft Article 15, it got evolved several times strengthening the stand of the provision
of non-discrimination.
Article 15 of the Constitution of India, 1950 carries the same objective as

7 AIR 1951 SC 318.

8 AIR 1974 SC 555.
9 Ibid.

4
 Article 9 of the Draft Constitution, 1949 with a few amendments which were
necessary. Article 15(1) and Article 15(2) prohibit discrimination against the citizen
by the State and the Citizens in public places.10 The word ‘discrimination’ means
‘distinguishing one from others on unjustified grounds unfavourably’11. Another
important word is ‘only’, which clears it that if the discrimination is based on solely
any of these grounds, it would be prohibited under Article 15. But if the discrimination
is based on some other reasonable ground along with the above-mentioned grounds, it
would be a ‘favourable discrimination’, as visible in Article 15(3), which provides the
powers to State to make special provision for Women and Children in order to correct
the historical wrongs that happened to them, which made them unequal to other class
of the society. So, this provision provides special opportunities for the advancement
of women and children.
Here are certain examples which analyses India’s present stand on the Critical Legal Theory
Approach. As stated above, Indian Constitution promotes Equality and depromotes
Discrimination in an adhered way. However, let’s have a look at what past instances say -
1. Women in Defence -
“In the recent Secretary, Minister of Defence v. Babita Punia and Others 12, the government
put forth arguments before the Supreme Court to justify the proposal on the grounds of
permanent commission, grants of pensionary benefits, limitations of judicial review on policy
issues, occupational hazards, reasons for discrimination against women, SSC as a support
cadre, and rationalization on physiological limitations for employment in staff appointments.”
“The apex court has rejected these arguments, saying they are “based on
sex
stereotypes premised on assumptions about socially ascribed roles of gender which
discriminate against women”13. The SC, in this case, has done away with all discrimination
on the basis of years of service for grant of PC in 10 streams of combat support arms and
services, bringing them on a par with male officers. It has also removed the restriction of
women officers only being allowed to serve in staff appointments, which is the most
significant and far-reaching aspect of the judgment. It means that women officers will be
eligible to tenant all the command appointments, at par with male officers, which would open

10 State Of Sikkim v. Surendra Prasad Sharma 1994, 1994 AIR 2342, 1994 SCC (5) 282.
11 Kathi Raning Rawat v. State of Saurashtra 1952, 1952 AIR 123, 1952 SCR 435.
12 (2020) 7 SCC 469.
13 Ibid.

5
avenues for further promotions to higher ranks for them: if women officers had served only in
staff, they would not have gone beyond the rank of Colonel.”
2. The Sabarimala Controversy -
“In 2018, a woman judge stood as the lone hero in the disaster that was the Sabrimala case.
Justice. She was the lone woman judge in the bench that wrote the majority judgement — a
4:1 decision that forced the Ayyappa temple at Sabarimala to open its doors to women in the
10-50 age group. It was the basis on which women of menstruating age were barred from
entering the temple since the presiding deity was celibate. Justice Malhotra noted that deep
religious sentiment should not be interfered with by courts. She was a woman and the fight
was for the woman and a religious class. Despite the fact, she did not form a bias for women
and preferred the other side of the case.” 14

3. Decriminalising Homosexuality -
Navjot Singh Johar v. The Union of India15, a landmark judgment by India’s highest court has
overturned a colonial-era law that criminalizes consensual gay sex, in a hard-fought victory
for the LGBTQ community. Delivering this decision, the court held, “The LGBTQ
community has the same fundamental rights as citizens. The identity of a person is very
important and we have to vanquish prejudice, embrace inclusion and ensure equal rights.” It
was also contended that this provision violates Article 15 i.e., protection from discrimination
because the said section discriminates on the basis of gender. This is a classic example of the
Indian Judiciary’s elevating and positive approaches, which are not based on social biases as
claimed by CLS Theorists.

4. The Migrant Issue During Pandemic -

Some of the cases during pandemics like -
(i) “Can’t stop or monitor their movement on roads’: SC rejects plea seeking relief for
migrants”,16
(ii) “SC allows Air India to operate non-scheduled flights with middle seat bookings for 10
days”17

14 Indian Young Lawyers Association v. The State of Kerala, 2018 SCC OnLine SC 1690.
15 AIR 2018 SC 4321.
16 Ananthakrishnan G, ‘Can’t Stop on Monitoring Their Movements on Roads’ : SC Rejects Plea Seeking
Relief For Migrants’, https://indianexpress.com/article/india/supreme-court-on-migrant-workers-movement-on-
roads-covid19-lockdown-6411143/ (Accessed on May 18, 2022).
17 Sanya Talwar, “SC Allows Air India To Operate Non-Scheduled Flights With Middle Seat Bookings For 10
Days”, https://www.livelaw.in/top-stories/sc-allows-air-india-to-operate-international-flights-with-middle-seat-
bookings-for-10-days-157268 (Accessed on May 18, 2022).

6
“One conclusion that can be drawn from these orders is that the court doesn’t care that much
about the migrants currently trying to get home within India as much as it does about the
migrants from outside India. The class differences between the two groups of people is too
obvious to be re-stated and one can see which group the court sympathises with.
Another conclusion that can be drawn is the obvious faith that the court places in the stand of
the Government. That whatever the Government says is taken at face value and deemed
sufficient to dispose of the matter.”
5. ADM Jabalpur Case -
“During Emergency, the SC, in the case of ADM Jabalpur v. SK Shukla18, held that
individuals have no enforceable fundamental rights during an Emergency and which virtually
gave governments the power to murder citizens. The judges ruled in favour of the government
with a 4:1 majority. Only Judge Khanna had the courage to make the right decision in favour
of human nature and freedom.” He knew that it would cost him the seat of the President of the
Supreme Court. of India. The judgment ended with a firm quote:
“As Judge Huges observed, judges are not
there to decide cases, but to decide them as
they should, and even if they are regrettable
that they cannot always agree, it is better that
their independence is maintained and that
unanimity is guaranteed by their sacrifice.”19
CONCLUSION -
As inferred from the above examples, the Constitution of India is rigidly
flexible and acts as a guiding light for the judicial decisions. Article 14 and Article 15 of the
Constitution of India promote Equality and discourage Discrimination. However, its flexible
nature allows an ‘Intelligible Differentia’ based on ‘Rationale Nexus’, which has to be
interpreted likewise.
We have seen several cases where the Court has taken appreciable decisions
considering the disadvantageous groups of the society, irrespective of Judges’ biases. We
have seen men and women giving the judgement in favour of Homosexuals, a woman
deciding the case based on religious nexus and not gender nexus, and all the men judges
promoting the defence opportunities for women irrespective the social bias. However, there
are some instances where the court has necessarily taken the decisions in favour of the elite

18 AIR 1976 SC 1207.

19 Ibid.

7
groups or the running government. Bias may not be the only cause, but a larger national
security maybe. But the decisions have faced several criticisms for being in favour of the elite
group without taking account of the starving needs of the disadvantageous group of the
society.
Therefore, we can safely conclude that the Indian Legal System mostly does
not follow the critical legal theory. However, there are some instances where the court does
support the elite class (or the ruling party), or an advantageous group for that matter, of the
society. Nevertheless, the court tries to come up with a rationale and just decision every time,
which may sometimes go beyond the constitutional values but based on moral values. These
values are the needs of the case, from a socio-legal perspective. Hence, the Indian Legal
System is evolving and trying to adopt a realist approach, where the basic Hunch is based not
on the orthodoxical thoughts, but basic moral values of what is right and what is not, in raw
format.
● Personal Opinion -
Critical Legal Theory is based on Legal Realism. It is true that the judicial decisions
are and cannot be free from the natural thought process of the judge. It is a subjective
exercise. The quality of decision depends on this thought process. CLS says that the
decisions are biased, in favour of elite and socially advantageous groups. However,
not always is the thought process of the judges based on this. It depends on the
background and social environment they have been brought up in. The situation in the
21st century is quite different, where the judges are morally sound of what is wrong
and what not and what exactly affects the thought process and that too in which way.
Therefore, they can reasonably differentiate between wrong and right. The law schools
and legal education also play a role in this process. Therefore, the idea of Legal
Realism is right, but the idea of Critical Legal Theorists that “The critical legal
studies movement rejected the concept that law was value free and above political
concerns. The critical theorists contend that the law only seems neutral and
independent because it reflects the dominant value system of a society and that law
only seeks to maintain the status quo” is not always true, especially in a legally
evolving country like India.

Answer 3 -
‘Legislation’ is a Latin word derived from ‘Legis’, meaning law, and
‘Latum,

8
meaning bringing. It means bringing an enforceable law. . Legislation means ‘the making of
Law’ in general sense, Legislation can be defined as ‘the promulgation of legal rules by an
authority which is competent to do so.’ Legislative law making is also known as ‘The process
of revealing the process of divine law by the highest priest.” Legislators create a set of social
rules that a majority of the legislatures have declared to be enforceable law. These social rules
are based on the social needs and requirements of the citizens. Legislators come from
different constituencies bringing up the issues and needs of new/revised law in their
constituency. As the representative of the citizens of that constituency, the lawmakers address
the needs of their constituency to legislative process.
Legislative process consists of several stepwise processes. It all starts from
the identification of the ‘Need’ in society. Once the need is identified, the concerned ministry
takes account of that and delegates the responsibility to several experts in the field, in
research, public policy development, etc. This comes up with the First Reading of the ‘Bill’ in
the house. Here, the bill is discussed and debated. It is then referred to the standing committee
of the specific department to make changes. In this way, the bill gets 3 readings with votes. At
the end, the President is either supposed to assent the bill or keep it on the stay. After the
assent, the bill becomes ‘Act’. However, this entire process contains several loopholes
because at the end, the legislatures are the representatives of the people. Whether the voice of
the people is reaching to the parliament is the subjective question.
“This law-making process is a complex process. A state plays the leading
role in it. It gives to the norms the force of law and supports their enforcement by force of its
bodies. An adopted act is considered as an act of the state. A state may regulate the law-
making process, plan it and thus influence the development of the law. But its activity must be
legal and is not arbitrary. The law-making process as experiments in the adoption of laws
does not satisfy a society. In the law-making process the interest of the society and the interest
of the state meets. Society needs a stable legal system, reflecting changing demands and
interests of the society. Fulfilling this task, the law-making process must be based on
democracy and science in order to reflect and determine the development of the society. And
the society is interested in the influence on the governmental bodies in law-making and in its
control. The mistakes of the state in the law-making process have negative results for the
development of the society; otherwise, the correct direction of the law-making process has
positive results for the development of the state. It is very important in the period of social
crisis.”
The role of the legislature in the law-making process requires different skills

9
- An ability to develop an alternative strategy, to develop tactics in different stages of the
legislation. It should be responsible for the attitude of unexpected and ever-changing
circumstances. Therefore, for a successful law making, a lawmaker must possess some
qualification and delegate some functions as below. Let’s understand this with a problem
given in the question.
Problem -
“The process of law-making is distinguished by the extent to which compromise is
incorporated into the political system. While legislators have their own viewpoints about
which laws need immediate attention and which do not, citizens who are either proponents or
opponents of certain legislation constantly try to influence the work of lawmakers.”
Considering that these dynamics take place with each and every legislator, it is no wonder that
a legislative session can become besieged with confrontation and confusion.
Proposed Solution -
Here are the skills and functions which are expected to be possessed by the legislature in
order to avoid the above-stated situation -
1. Apprenticeship -
Since law making is a very practical job, the legislature is expected to possess these
practical skills. Apprenticeship helps in building these practical and professional skills
in the early career. It helps in learning rules, committee work and keeping a low
profile. It helps in a holistic development of a lawmaker by not only imbibing
theoretical knowledge but also practical skills. Thus, it is expected that the lawmaker
must have done apprenticeships in the early career.
Here, in the problem -
Had the legislature done apprenticeship, he would have learned the practical solutions.
Practical solutions are based on the foreseeability of the problems. This includes
surveying the people’s opinion of what is their requirement before the legislative
session, ensuring that this survey remains transparent and enough research is done to
collect actual data and statistics. This is one of the practical solutions, Apprenticeship
teaches several such ways.
2. Cordiality -
This is a skill of team-working with different people cordially. This includes
considering views of different people coming from different backgrounds carrying
different views. It also includes the collection of public opinions by communicating
with different groups of people.

10
 Here, in the problem -
This skill forms a crucial element of this problem. Cordiality does include
communicating with people with hospitality to understand their problems politely. As
the legislature is the people's representative, no solution could be better than directly
hearing the problems from the ground. This would help in precisely knowing their
current requirements. Moreover, building a consensus in the houses is also a task-
made-simple with cordiality.
3. Effective Legislative Work -
Effective legislative work means more work in less time without skipping any part of
the process. It helps in disallowing unreasonable delays and building accountability
and transparency in the system.
Here, in the problem -
Accountability between the citizens and their legal representative is important. This is
also a part of effective legislative work. Public Participation may also slow down the
process, hence effective law making on the part of the legislature is important.
4. Reciprocity -
Reciprocity is the skill which helps in helping each other out in the parliament dealing
with the similar problems by, maybe, dispensation and delegating duties or providing
a new notion to the already existing policy intellectually. This eases everybody's work.
Here, in the problem -
There are several steps involved in the current problem like, collecting the right
opinion of the people about their problems, segregating the right ones, researching
about it by collecting data and statistics and then finally forming a bill. This entire
process requires several different skills. Hence, delegating the task could help to finish
the law-making process effectively and efficiently.
5. Specialization -
It is also expected that the lawmaker has formally specialized in at least one or few
legislative areas so that their expertise could be used by other members of the
parliament as well. Everybody can’t specialize in everything, but everybody can do
something which can be shared with others.
Here, in the problem -

11
 To resolve the problem of public influence, one may have different specializations.
Some of them are - Critical Thinking, Particular Domain of Law or Social Science,
Economics and Data Analysis, Communications are some areas to be specialized in.

6. Seniority -
Experience gained by a legislature in his life definitely deserves respect. Hence, it is
assumed that the senior is well-versed with the practical problems that can come up.
Therefore, seniority is always given a preference.
These six skills can be used to overcome the above-said barrier in the
law making process. However, the skill set is highly subjective yet form a successful law-
making process. These are not just skills, but solutions to almost every problem that can come
up in the process.
Examples –
 Jammu and Kashmir Reorganization Act, 2019 –
“This Act was in the glare of publicity because it was preceded by a Presidential Order
under Article 370 of the Indian constitution, which superseded the 1954 Presidential
Order. The dissolution of the 1954 order resulted in the abrogation of Articles 370 and
35A of the Indian constitution which accorded the state of Jammu and Kashmir with
special provisions. This law faced severe criticisms from certain sections of people in
India and abroad. The revocation was accompanied by heavy use of armed forces,
occlusion of the telephone lines and the internet in the Kashmir Valley. A number of
prominent Kashmiri statesmen and legislators were taken into detention, including the
former leaders.”
This shows lack of cordiality and lack of problem-solving skills. This could have been
solved with a better solution had the Ministry consisted of the leader who had practical
experience to deal with such situations as these situations are very much predictable.
Apprenticeship teaches one to deal with such situations from the younger age. Such
experience gets imbibed into one’s personality and thought process.
 The Tribunal Reforms (Realisation and Conditions of Service) Act, 2021
It was very much expected that the bill would not be getting majority in the
parliament, due to its controversial and irrational reasons. Journalists revealed that
there was not a genuine need to pass this ordinance in such a haste without giving ears
to the opposition. However, the government passed the ordinance in the absence of the

12
 opposite party. This is a clear example of inefficiency and unaccountability on the part
of the legislatures. They are the representatives of the people. Laws are made for the
people. Therefore, denying to listen to the people’s needs in such an arbitrary way is
an instance of gross irresponsibility and malice on the part of the legislature.

Answer 4 -
Social Control is a rule of conduct that society uses to maintain order and
harmony in the society. This is done by controlling human behaviour that would conform to
their social norms. cultures, morals and traditional values. It ensures that no individual acts
abnormally, non-lined with these set principles which eventually helps in preventing disorders
amongst the individuals and in the society at large. This helps in smoothing the functions of
social institutions which, if function properly, run the society smoothly. It helps in controlling
the society by several ways majorly like, establishing certain positive or negative penalties
(and in essence, making mandatory by this mean), if acted, or implied to act, or intent to act,
in some codified ways or omit to act in certain acceptable ways, which are either coded or,
being a reasonable man, are implicitly learned from the society. On the other hand, at the
same time, it ensures that the party who faced the loss regains its position as it was before the
wrong was committed. This is however done by two means broadly -
1. Informal Social Control -
“Informal social controls are any actions that do not rely on laws to manage human
conduct and interaction. Socialization is the most common and successful way for
society to manage its members' behaviour. Informal controls can take the form of
socially acceptable incentives like praise or compliments, which reinforce good
conduct by making members feel socially desirable. Informal controls, on the other
hand, might take the shape of consequences like scorn or gossip to deter undesirable
conduct. These unofficial social constraints are mostly implemented inside families,
schools, and businesses. Informal social controls are more persuasive, formative, and
integrative than formal social controls. Because social standards seldom have coercive
force, particularly in highly autonomous and educated cultures, it is preferable to use
persuasion to persuade members to behave.”
2. Formal Social Control -
“Formal social control is frequently characterised as any legal-based social control.
Some writers consider an activity to be a formal control if it is governed by a written

13
 and official document, such as the rules and regulations of a certain organisation.
Formal social controls are any sort of government-enforced or imposed control.”
According to Lawrence M. Freedman, law plays a vital role in social control in two
ways: First, it explicitly establishes rules and standards that are necessary for society
and punishes deviant behaviour. Second, the judicial system enforces a slew of social
control laws. Burglars are apprehended by police, prosecuted by prosecutors,
sentenced by courts, monitored by prison guards, and released by parole boards.
Formal social controls are often imposed, punitive, and oppressive, albeit not always
and not entirely. Under formal social control, an individual or group has no option but
to obey. Formal regulations in the past have frequently concentrated on crime and
punishment, regardless of whether the sentence is for future deterrence or
reintegration. In the demand for more control in modern society, governments seek to
pass laws that ban or limit the acts of its citizens.
Here are the differences between Informal and Formal Social Control -

CHARACTERISTICS FORMAL SOCIAL INFORMAL SOCIAL

CONTROL CONTROL

Definition Social Controls are based on Social Controls are based on

Law. Social Norms, Morals,
Ethics but not on Law.

Enforcing Social Units Police, Judicial Courts, Families, Schools,

Government Agencies, etc. Workplaces.

Nature/Quality Imposed, Punitive and Persuasive, Formative and

Repressive. Integrative.

Type of Society Large, Urban Community. Small, Rural Community.

Examples Policing, Judicial Punishment, Socialization, Praises and

Agencies Regulations. Compliments, Scorns etc.
However, at times, there comes a situation where Formal Social Control and
Informal Social Control are at odds with each other. The action may be morally right but
legally wrong or legally right but morally wrong. This forms a conundrum as to what exactly
would prevent the abnormality in human behaviour. Here are the examples elaborating the
situations -
1. WHEN FORMAL AND INFORMAL SOCIAL CONTROL ARE AT ODDS -
Example - Hyderabad Gang Rape -

14
 “In November 2019, the gang rape and murder of a 26-year-old veterinary doctor in
Shamshabad, near Hyderabad, sparked outrage across India. The police arrested four
men based on the evidence gathered from CCTV cameras and from the victim's
mobile phone. The rape and murder elicited outrage in several parts of the country.
Protests and public demonstration against rape were organised nationwide after the
incident, with the public demanding stricter laws against rape and rapists. The
Minister of Home Affairs criticised the Telangana Police and stated that the
government intended to amend the Indian Penal Code and Code of Criminal Procedure
to introduce laws for quicker punishment by fast-track courts. All four accused were
killed on 6 December 2019, under a bridge on Bangalore Hyderabad national
highway, while they were in police custody. According to the police, the suspects
were taken to the location for a reconstruction of the crime scene, where two of them
allegedly snatched guns and attacked the police. In the ensuing shootout, all four
suspects were shot dead. Some accused the police of extrajudicial execution, while
thousands of people celebrated the men's deaths.”
Here, the countrymen praised and appreciated the Telangana police’s quick action
against the rapist. It was done with the incomplete investigation, but the police gave
the defence of avoiding the further crime by the same victims and the pressure of the
countrymen. Public Appreciation to the Police was a kind of Informal Social Control
encouraging the behaviour that the police has shown in the present case.
However, on the other hand, police were greatly criticised and castigated by the legal
authorities for not following the proper Criminal Procedural Court. They claimed that
the action of the police was unlawful, unjust and arbitrary. Police took a step beyond
their authorized powers and could be held liable for extrajudicial custody. This kind of
behaviour is not at all encouraged by the Law.

Cause of such odds -

Here, in such cases when the formal and informal social controls are at odds, the
question arises of how to react to the act of wrongdoer and how he should be corrected in
either of the cases. Firstly, we need to identify the exact point as to where both of them divert
i.e., either he is morally correct and legally wrong or legally correct and morally wrong. We
need to identify the cause and consequences of such diversion. As in, in this case, Policemen
were socially appreciated to punish the accused on their own, their act was however illegal in

15
the eyes of law. The cause of diversion became the act of police, which was although a need
of an hour, but not completely just as there was always a possibility that the accused are not
guilty as the investigation was not done.

2. WHEN FORMAL AND INFORMAL SOCIAL CONTROL ARE

OVERLAPPING
Example - Theft, Rape and Almost All Other Criminal Offences
Committing theft is not only legally wrong but also morally wrong. Our moral and
religious teachings teach us not to steal. On the other hand, the Indian Penal Code
does penalise theft and is a criminal offence where the accused is penalised if found
guilty of committing a theft. Similarly, honouring the modesty of women is what our
morals teach us. However, it is also legally wrong to disrespect the modesty of a
woman. When analysed clearly, it can be inferred that almost all kinds of criminal
behaviour are not just legally wrong under the respective Penal Codes but also have a
morally wrong base.
Now, it forms a conundrum as to follow which type of Social Control to correct the
abnormalities in the behaviour in the second case i.e., when Formal Social Control and
Informal Social Control overlap. As we have seen that in the majority of cases, legally
wrong are morally wrong as well. But bringing out the change in large numbers of
people is practically impossible, but it is the best solution at the smaller scale. Let’s
consider it for a while.

Proposed Solutions -
We have three cases here -
(i) When the act is morally correct but legally wrong,
(ii) When the act is legally correct but morally wrong, and
(iii) When the act is both morally and legally incorrect.
The solution in these situations depends on a lot of causes and consequences of an act. The
choice to correct the person varies with the gravity of a wrong, intentions of causing it,
consequences of causing it, probability of the wrongdoer committing it again. This is because
the ultimate aim of the law is to reduce the wrongs in the society at the utmost level. Taking
note of this,

16
 ➢ Gravity of a Wrong Act -
If the act is too grievous, and instils a fear in the other members of the society, it must
be dealt with using Formal Social Control.
However, if the act is not grievous and is trivial, informal social control is helpful.
➢ Intention Behind the Wrong Committed -
Intention has a lot to do with morals. If the act is done with bona fide intentions, it will
not be a wrongful act in informal social control. However, its wrongfulness in the
formal social control would be determined by the other factors like consequences,
gravity and probability of getting repeated.
But if the intentions are mala fide, it should be addressed morally. Correcting Morality
may correct intentions, penalising would not.
➢ Consequences of the Act -
Even if the act is legally right, morally wrong or vice versa, its consequences can be a
tough determining factor to choose which means exactly to control such kind of
behaviour. It must be observed as to what are the consequences on society as a whole
and how much of the population is getting affected.
➢ Probability of Wrong Getting Repeated -
Ultimate aim of the society is to minimise the wrongs in the society. Therefore, the
cases must be directed in such a way that the wrongdoer should not commit the same
wrong again and reduce the probability of the wrong getting repeated by the same
wrongdoer.
In all the cases, Gravity of the wrong, Intention, Consequences and Probability of getting
repeated have to be read together.

1. Now, in the Case (i), Where the Act is Morally Sound, but Illegal -
Just in order to promote human morality, changing the morality of the legal system
would be an impractical solution. Therefore, if the act is of national importance, or
affects the larger group of people, it must be dealt with using Former Social Control
Mean.
However, if the act is trivial, does not cause grave loss and affects smaller population
area, using informal social control means would be more helpful because it has three
advantages -
a. The wrongdoer gets an opportunity to correct himself morally
b. Prevents future recourse of the crime

17
 c. Saves Times, Litigation Cost and Fiduciary Relations
For Example - In the above-stated example of Hyderabad Gang Rape, the action of police was
legally wrong but morally correct. But it forms a question of national importance, causes
grievous hurt, it must be controlled legally i.e., with the help of Formal Social Control.

2. Now, In Case (ii), Where The Act Is Morally Wrong But Legally Correct.
Again, the same factors must be examined. If the act is causing grievous hurt and affects
society negatively (affecting larger no of people), there are less possibilities that even if the
wrongdoer is given a moral opportunity to improve himself, the probability of reducing the
wrong getting repeated would not get reduced. Then, it must be corrected using extrajudicial
powers because the actions are otherwise legally right.
If the wrong is trivial and does not harm society, the matter must be negotiated and resolved
at the civil level based on social norms, natural reasoning and morals.

3. Now, in Case(iii), Where The Act is Morally and Legally Wrong.

In this case, everything must be read together.
Similarly, if the wrong is grievous and has many negative consequences and affects the large
number of people, human behaviour must be controlled with the means of Formal Social
Control.
For Example - Grievous Criminal Offences are grievous and affect the larger society, the
solution to vary morals may seem impractical which are established over years but a long-
term one. Therefore, in such cases, Formal Social Control must take the hold of the situation.
Similarly, there are trivial crimes like a random theft which does not affect a larger population
nor is much harmful, it can be dealt by correcting the morals as it has its own advantages as
stated above.
CONCLUSION -
As we have seen, Social Controls are basically a tool to control human behaviour and keep it
in a limit. The objective is that everyone has rights and duties. One does not have the right to
infringe another one’s right. However, human behaviour can be controlled using two means -
Formal and Informal. We have already differentiated between the two. However, there are
times when the act is wrong under Formal Social Control, i.e., legally wrong, but right under
Informal Social Control, i.e., Morally correct, or vice versa. And sometimes, the act is
morally as well as legally wrong. It becomes difficult to take an action in such situations
where the Formal and Informal Social Controls are either at odds or overlap each other.

18
Then we have seen that since the ultimate aim of the society is to reduce the wrongs, we need
to apparently choose the mean likewise. However, the mean depends on four factors majorly -
Gravity of the consequence, Intention behind the act, Consequences of the Act and
Probability that the Wrong would not be repeated. Addressing morals and correcting the
behaviour using informal social control means is beneficial only if the act has trivial
consequences and does not affect the larger population.

Sr, No. Nature Trivial Grave Type of Social

Consequences Consequences Control
and Less Harm, and Grave
Affects Smaller Harm, Affects
Population Larger
Population

1. Legally Right, Yes Informal Social

Morally Wrong Control

Yes Formal Social

Control

2. Morally Right, Yes Informal Social

Legally Wrong Control

Yes Formal Social

Control (may
use extra-
judicial powers)

3. Morally and Yes Informal Social

Legally Wrong Control

Yes Formal Social

Control

Answer 5 -
Both Mahatma Gandhi and Dr. Martin Luther King Jr. are known for
launching a revolution against something that was set in the society as ‘law’, which was
supposed to be followed by every individual, to bring out the change in the law. As studied
in Indian and World History, both of these movements were ‘Civil Disobedience’ movements.
The question is what exactly makes these movements as civil disobedience movements? And
can it be brought at an individual level, since Mahatma Gandhi and Dr. Martin Luther King
Jr. initially found the law as unjust based on their individual convictions. Finding law ‘unjust’
is the subjective thing as what a particular person means by ‘unjust’. This is defined using the

19
moral hunch already formed. But is defining a civil disobedience movement limited to
breaking the already established law to show the resistance against it in order to demand for
the new one?
“Well, Civil disobedience clearly isn't a scientifically precise concept.
However, we can list some traits that a paradigm case of civil disobedience will have. For
one thing, it will be a refusal to obey or follow a law that is itself unjust, like the law against
making salt that Gandhi broke, or a law that supports unjust policies, like the racial
discrimination. That’s a start, but it doesn’t tell us the exact difference. Gandhi and King
weren’t just disobeying the law, but protesting law and policy by doing so publicly. Their
acts were of speech as well as disobedience. They were done openly, and they didn’t attempt
to escape punishment. To continue with our paradigm, usually we have in mind non-violent
activities, like sit-ins and marches. And of course, there is the intent is to change things; to
get the law repealed, or the policy changed. Putting it all together, a paradigm act of civil
disobedience includes: Disobeying or refusing to follow a law or policy believed to be
unjust, or supportive of injustice, publicly and non-violently, with the intent of drawing
attention to the law and policy, and getting it changed.”
Thoreau, who gave the term ‘Civil Disobedience’, understood the “civil”
in civil disobedience to characterize the political relations between civilian subjects and their
civil government, today most scholars and activists understand the “civil” to relate to civility
– a kind of self-restraint necessary for concord under conditions of pluralism. Therefore, the
characteristics of the Civil Disobedience Movement which make it ‘Civil’ are -
Communication, Publicity, Non-Violence, Non- Evasion and Decorum. These are not the
screening criteria of the civil disobedience, neither do they establish an ideal definition of
‘Civil Disobedience’, since the sociologists have kept contradicting all of them by stating
various examples.

● Individual’s Involvement In Civil Disobedience As A Matter Of Moral

Conviction
An individual has a choice whether to join or not join a Civil Disobedience Movement. It
depends a lot on various perspectives regarding the Civil Disobedience Movement. Some
sociologists and philosophers claim the Civil Disobedience Movement to be morally correct,
while others claim it as based on wrong, immoral and impractical convictions. An
individual’s choice to involve oneself into the Civil Disobedience Movement depends a lot
on his perspective regarding the movement, which ultimately is dependent on his moral

20
convictions. Morally Correct or Incorrect nature of Civil Disobedience is a conflicting topic.
However, it depends on several factors out of which we would be looking at some prominent
factors. Let’s analyse them critically to know the stand of both the parties who claim Civil
Disobedience as moral or immoral. Here are the two cases -

❖ Civil Disobedience is a Morally Correct Act -

1. Breaking Unjust Law is the Part of Morality -

“…there are two types of laws: just and

unjust. I would be the first to advocate
obeying just laws. One has not only a legal
but a moral responsibility to obey just laws.
Conversely, one has a moral responsibility to
disobey unjust laws. I would agree with St.
Augustine that ‘an unjust law is no law at
all’”
~ Dr. Martin Luther King Jr.
“By establishing a moral responsibility to disobey unjust laws, King makes it
impossible to deny civil disobedience is important freedom. For if we
recognize a freedom to pursue morality, and the pursuit of morality implies
civil disobedience, then we must acknowledge civil disobedience as a
necessary freedom. Of course, the matter is not nearly that simple.” While
this passage from King’s letter offers a viable reason to embrace civil
disobedience, it does so under the premise that it is moral to disobey unjust
laws.20

2. Civil Disobedience is a Non-Violent Way of Changing a Law -

“It is well claimed by the Civil-Disobedient promoters that the non-violence is
the essential component of the Civil Disobedience Movement. Any
interference with the civil liberties of others tends to obscure the civilly
disobedient quality of one’s act. Civil Disobedience protagonists aim to
peacefully break the law and protest to change the law, without any violence.
20 Jerry Perry, CIVIL DISOBEDIENCE’, Civil Disobedience | Philosophy Talk (Accessed on May 18, 2022).

21
 non-violence prohibits certain actions that don’t physically or psychologically
injure others but still cause harms”, such as property damage (e.g., vandalism),
violence to self (e.g., hunger strikes), and coercion (e.g., forceful occupation).
Hence, they claim that no harm is done. This is also a moral conviction for the
involvement of an individual in the act.21

3. “Non-Evasion -
Civil disobedient are standardly expected to take responsibility for, and accept
the legal consequences of, their lawbreaking. Their evading punishment would
make their acts ordinary crimes or acts of rebellion; their willingness to invite
punishment is supposed to demonstrate their endorsement of the legal system’s
legitimacy” and their “intense concern over the issue at hand”. 22 The theorists
have fleshed out this requirement of non-evasion in different ways, arguing
variously that the agent must (i) willingly submit to arrest and prosecution, (ii)
plead guilty in court, (iii) not try to defend her crime, and/or (iv) not complain
about the punishment received.23

4. Decorum -
“Being civil means that civil disobedient behave in a dignified and respectful
manner by following the conventional social scripts that spell out displays of
dignity and ways of showing respect in their society. They count decorum as
an additional, implicit requirement of civility in line with manifestations of
self-restraint. Decorum may be understood to prohibit conduct that would be
seen as offensive, insulting, or obscene.24 It helps to explain why Black Lives
Matter, which was conscientious, communicative, public, non-violent, and
non-evasive, were denied the label civil: to wit, because protesters shouted
down their opponents, expressed anger, used offensive language, or
disrespected religious sites.”

❖ Civil Disobedience is a Morally Incorrect Act -

21 Brooks, Thom, 2004, “A Defence of Jury Nullification,” Res Publica, Vol. 10 Issue 4, pp. 401–423.
22 Cohen, Carl, 1966, “Civil Disobedience and the Law,” Rutgers Law Review, Vol. 21 Issue 1, pp. 1–17.
23 Ibid.
24 Cohen, Marshall, 1970, “Civil Disobedience in Constitutional Democracy,” Philosophic Exchange, Vol. 1
Issue 1, pp. 99–110.

22
 1. Breaking the Law is Undemocratic, and hence, Morally Incorrect-
There are, however, numerous authors and thinkers who would disagree with
that contention.25 Rather than having a duty to disobey unjust laws, they assert
the law must be followed in all situations if anarchy is to be prevented.
Therefore, in his view, civil disobedience is not a positive freedom, but rather
a practice that ought to be prohibited. Another option is to involve the third
pillar of the democracy, i.e., Judiciary. Courts can be a good place to resolve
conflicting ideas. It has its own disadvantages, but choosing court over
breaking of law is promoting democracy.

2. Separation of Violence is Inevitable -

“Critics have objected to the supposed incompatibility between violence and
communication, arguing that violence, depending on its form and targets, does
not necessarily obscure the communicative quality of a disobedient act.
Burning a police car or vandalizing a Confederate monument, as some
protesters did under the Black Lives Matter banner, conveys a clear message
of opposition to police brutality and anger at the state’s failure to address
systemic racism.” The compatibility between violence and communication is
further underscored in cases of self-directed violence: self-immolation may
provide “an eloquent statement of both the dissenter’s frustration and the
importance of the issues he addresses”.26
“Non-violent acts or even legal acts may indirectly yet foreseeably cause more
harm to others than direct acts of physical force. A legal strike by ambulance
workers or a roadblock on an important highway may well have more severe
consequences than minor acts of vandalism. Psychological violence can also
cause injury to others. Hence, it is almost impossible to avoid harm.”

3. Detrimental Nature of Non-Evasive Civil Disobedience -

“While the civil disobedient who pleads ‘guilty’ and does not try to defend her
‘crime’ highlights her willingness to self-sacrifice, a ‘not guilty’ plea
accompanied by a defence of her action might be more effective at

25 Pineda, Erin, 2021, “Civil disobedience, and what else? Making space for uncivil forms of resistance,”
European Journal of Political Theory, Vol. 20 Issue 1, pp.157–164.
26 Ibid.

23
 communicating her convictions and persuading others, including by inviting
jury nullification. when civil disobedience is morally justified, the state’s
imposition of punishment is itself problematic and arguably impermissible, so
that further protests against civil disobedients’ arrests, prosecutions, and
sentences are justified.” Critics have also noted that punishment can be
detrimental to dissenters’ efforts by compromising future attempts to assist
others through protest and that willingness to accept punishment cannot be
reasonably expected when agents know they risk heavy fines or very long
sentences for their actions.27

4. Non-Decorum is Not Non-Civil -

Critics have argued that the Civil disobedience does not need to be decorous
and push back against denials of civility, insofar as these are often deployed to
silence activists. They deem expressions of anger and offensive or obscene
displays to be compatible with civility and insist on dissociating the politics of
‘respectability’ from civil disobedience.28

 CIVIL DISOBEDIENCE AT AN INDIVIDUAL LEVEL –

In a democratic country like India, there are several individuals having their
perspective about the generalised rights given to them. Law treats everyone equally.
Interpreting it quite correctly, law treats alikes equally. Hence, there are stances where
women are treated differently. Some of these stances came along with us from the
very past and lost its originality, reasoning and significance in today’s time. Such
laws keep evolving. But evolution of such laws does not necessarily start from the
group of people. Several laws start from the individual level itself. When an
individual finds the lost anachronistic to the today’s society, and following such law is
nothing less than injustice to that particular community, individual comes forward and
break the law to bring the public attention to the law. This depends a lot on moral
convictions of an individuals as defined above. But every large movement starts from
the moral conviction of an individual. It is always the one who notices the injustice
and raises the voice to call out the community and bring their attention to it. However,
many of such movements get confined to the individual’s limit and do not become

27 Supra Note 24.

28 Stanford Encyclopedia of Philosophy, “CIVIL DISOBEDIENCE”, Civil Disobedience (Stanford
Encyclopedia of Philosophy), (Accessed on May 18 2022).

24
 movements, yet they are Civil Disobedience Movement at the Individual’s level.
Individuals prefer to go to courts before launching it as a Movement, as it may have
negative consequences. Some of these movements are –

EXAMPLES -
1. QUIT INDIA MOVEMENT 1942 -
It was a Civil Disobedience Movement launched by the Indians against the
Britishers in 1942 against various laws introduced by them like Cripps Mission and August
Offer. Unlike other movements which majorly got support from the majority of the country,
here some groups of people in the same country either completely supported with great zest
and zeal or completely opposed the Gandhian idea. The movement did not have the support of
many organizations of the country itself. However, the movement was opposed by some
groups of people like never before.
It could not be denied that it was the idea of Mr. Gandhi to launch the movement. He was the
one to break the laws brought forth by the Britishers at the first hand to show his opposition to
the law. Hence, his act was a disobedience to the Britishers’ law.
The Hindu Mahasabha, Rashtriya Swayamsevak Sangh (RSS) & Muslim League also
opposed the Quit India Movement because their moral convictions indicated that this is going
to cause internal violence and disorder, whereas other people participated with full
enthusiasm. Many Congress members like C Rajagopalachari resigned from the provincial
legislature as they did not favour Mahatma Gandhi’s idea of non-violence and believed that
no civil disobedience movement can be successful without the use of violence.
Hence, their moral conviction was based on the non-violent nature of the movement.
However, when they felt that the movement was going to bring internal violence, they
withdrew themselves.

2. CIVIL DISOBEDIENCE MOVEMENT -

The Civil Disobedience Movement saw a large participation of people from various classes,
including the business class. Keen on expanding their business, the business class supported
the movement against colonial policies that restricted business activities. They wanted
protection against imports of foreign goods, and a rupee-sterling foreign exchange ratio that
would discourage imports. They gave financial assistance and refused to buy or sell imported
goods. But after the failure of the first Round Table Conference, despite the continuation of
the movement, business groups were apprehensive of the spread of militant activities, and
worried about prolonged disruption of business, they withdrew support to the movement.
25
Therefore, it was their moral conviction to prioritise which interest above the other one.
Moreover, Mr. Gandhi was the first person to show his non-compliance towards the
Britishers’ Salt Tax Laws. This was communicated to the other people and they joined in
later. This forms a classic example of individual’s involvement on the basis of moral
convictions.

3. POLL TAX RIOT -

“The advent of the poll tax was due to an effort to alter the way the tax system was used to
fund local government in the UK. The system in place until this time was called "rates" and
had been in place in some form from the beginning of the 17th century. The rates system has
been described as "a levy on property, which in modern times saw each taxpayer paying a
rate based on the estimated rental value of their home". The Thatcher government had long
promised to replace domestic rates, which were unpopular, especially among Conservative
voters. They were seen by many as an unfair way of raising revenue for local councils. It was
levied on houses rather than people. Everyone protested against the taxes. However, The
response of the Metropolitan Police, the Government, the Labour Party and the labour
movement and some of the Marxist and Trotskyist left, notably the Militant tendency, was to
condemn the riot as ‘senseless’ and to blame ‘anarchists.”

Conclusion -

It can be well concluded that the Morality of the civil disobedience

movement is still a conundrum. There are a lot of characteristics of the civil disobedience
movement, which encourages its notion of being morally right. However, all the
characteristics like non-violence, decorum, non-evasive nature have got criticism, and so
does to the overall nature of the Civil Disobedience Movements. This forms a face reason
for why some people find the same act as morally good and the other one does not
participate in the same act because for him it's an immoral act. Moreover, Civil
Disobedience Movement can be launched at an individual level and such resistance to the
law is usually taken to the court rather than making it a large scale movement.
We have seen the examples of three historical civil disobedience
movements. Movement was the same for all the people engaged in it or getting affected
by it. However, some found that as a just way to resist against some already established
law, whereas others were aloof. They chose to withdraw themselves from the movement.

26
This is because their morals do not find resisting the law with that specific movement or
the consequences of that movement as a morally right act to the society. Hence, it is
concluded that altogether an individual’s involvement in the civil disobedience movement
is a matter of individual or moral conviction.

***************

27
28