Importance of

Legislation in
‘shaping the
change in the
society’
 Legislation in ‘shaping the change in the society’

• At first, the beginning question would be do we really believe

that legislation shapes the change in the society or does not?
• Secondly, has every change in the society a result of legislation
or not? If yes, how? And, If not, how?
• Third question to think would be what kind of change are we
talking about? If that is a positive change for e.g. a society
transforming for a patriarchal society to an equal society or, a
negative change for e.g. a democratic society transforming into
a despotic society ?
• These questions are deeper ones and would be worth analyzing
independent of each other.
 Legislation in ‘shaping the change in the society’
• Every society is in the state of flux. Sometimes human behavior
and their mutual understanding could be a factor for such change.
For e.g. we have started shifting our economic interest in
companies, factories and places where we earn more. But, human
behavior and their mutual understanding cannot be an absolute
and independent factor. Law, or legislation in other sense, have
largely shaped so many changes in our society. For e.g. recognition
of same-sex marriage as a fundamental right in so many countries.
• Legislation are always made reflecting needs as well as changes of
any given society. For e.g. Electronic Transaction Act 2063 of Nepal
was made to address the emerging needs of management of
electronic communication.
• Legislation acts as a medium of social control, social change and
social welfare thereby shaping the change in any society.
 Legislation in ‘shaping the change in the society’

• Martha Minow, Professor of law at Harvard University in ‘Law and

Social Change’ argues that there are two kinds of people: (a) those
who believe that law is an important instrument of social change
and, (b) those who do not believe in that way.
• As legislation (Constitution, Acts, Rules, By-laws etc.) are
considered as the most important source of law in modern day
world, it has influenced many aspects of our society. Thus, has also
helped to change our society. For e.g. think how welfare laws have
helped or tried to help to change our society.
• Roman Phrase ‘ Ubi societas, ibi isu’ which means ‘Wherever there
is a society, there is law.’
Through this phrase, we can relate the relationship between law and
society.
 Legislation in ‘shaping the change in the society’

• We also need to think that on which element of the society, our

study of change is focused on. Is it on environment, culture,
economy, health, religion, human behavior etc. as they are key
elements of any society.
• Legislation and change in Environment: Environment Protection
Act, 2053 and Art. 30 of the 2072 constitution.
• Legislation and change in economy: Privatization Act 1994 opening
the door for private enterprises to do business.
• Legislation and change in health: Let’s imagine if Nepal
government makes a law providing free health services to its
citizen. It will surely make huge impact in both health as well as
society.
• Legislation and change in religion: 1990 Constitution declared
Nepal as a Hindhu State; whereas, 2072 Constitution has declared it
as a secular State.
 Some examples from Acts
• Civil Rights Act 2012 has guided the Nepalese society from feudal
society to freedom based society. Before this law, rights of individuals
were curtailed/limited by Ranas. With the decline of Ranas, this law
recognized fundamental rights of Nepalese citizens such as right to
speech. (Civil Code has replaced this Act)
• Land Reform Act 2012 abolished feudal land system. Before this
law, feudal land system existed. Therefore, it abolished social
interaction
• Section 5 of the Social Practices (Reform) Act 2033: This provision
has restricted or prohibited dowry system in Nepal and have tried to
establish a just society, especially in Teria.
• Prevention of Corruption Act 2059: Corruption is one of the serious
impediments for a just society. This Act has aimed at transforming
Nepali society by preventing corruption.
• More examples: Bonded Labor Prohibition Act 2058 and Case based
Discrimination and Untouchability Act 2068
 Some Examples from Constitution
• Equality laws of Nepal have also helped to create social changes in Nepal
thereby empowering women. Nepalese society is not same as it used to be
before 50 years back i.e. have shifted from Patriarchal society to justice
oriented society. Additionally, empowerment of women, Dalits, indigenous
peoples (Adibasi, Janajati), Madhesi or farmers, workers, economically,
socially or culturally backward classes or children, the aged and the disabled
by positive discrimination in Art. 18 of 2072 Constitution.
• Concept of Welfare State: Art. 50(1) of the 2072 Constitution: “The
political objective of the State shall be to establish a public welfare system
of governance, by establishing a just system in all aspects of the national life
through the rule of law, values and norms of fundamental rights and human
rights, gender equality, proportional inclusion,…”(Think how it relates to the
concept of welfare State and how it has tried to change Nepalese Society).
 Some examples from other legislation
• Media Ordinance issued by the then King Gyanendra was a
serious factor for the deprivation of freedom of press. It was
annulled later. Had it been continued, the status of Media would
have been affected badly in Nepali society.

• Decree issued by Chandra Shumser on abolishment of Sati

system from Nepal. This law is considered valuable as it helped
to discontinue one of the most immoral acts prevailing in
Nepalese Society for time unknown.
 Legislation, Society and Change: Few Cases
• Adv. Chandra Kant Gyawali v. Cabinet Ministry and others 2061: 11th
amendment of the Muluki Ain on sec. 9 of the Chapter on Marriage is
still discriminatory. Male can re-marry. Whereas, if done same by female,
is punishable. The government of Nepal was issued order by the court
to make, amend or repeal appropriate law by studying, discussing the
issue raised by the applicant on the basis of our social context, norms
and values.
• Meera Kumari Dhungana v. HMG Ministry of LAW, Justice and
Parliamentary Affairs and Others 2052 : Making sudden changes in
traditional practices and social norms existing in the society since a long
time ago, may create problems in connection to adjustment in the
society. Before reaching a decision all of a sudden, a just provision
should be made by holding wide and extensive discussions and
deliberations taking into account of the constitutional provision vis-à-vis
equality. (Court nullified Sec. 16 of Chapter on Property of Muluki Ain)
Legislation, Society and Change: Few Cases

• Adv. Sapana Pradhan Malla and others v. Prime

Minister and Council of Ministers 2065: Law is
dynamic in nature and as envisaged by the modern
society, law should be reformed pursuant to the
expectation of the society.