LL.M. (Two Years) Sem 1 Law and Social Transformation in India 2014 Dec Question Paper with Solutions

The proposition

Many jurists see law as a product of tradition and culture. Savigny held that law grows from a people's common consciousness, as language does. Sir Henry Maine traced how law develops from early customs and family status. Eugen Ehrlich found the "living law" in the customs of groups rather than in statutes. On this view, law should follow tradition.

A progressive society is one that seeks to change itself towards greater equality, liberty and dignity. India became such a society by choice in 1950. Its Constitution promised justice, liberty, equality and fraternity to a society that did not yet have them. The complexity lies here. If law grows out of tradition, how can it also change that tradition? The tension shows itself in six ways.

Complexity one: whose tradition?

India has not one tradition but many. Hindus, Muslims, Christians, Parsis and Jews have their own family laws. Tribal communities follow customary laws, and article 371A protects Naga customary law from Acts of Parliament unless the Nagaland Assembly agrees. Castes and regions have their own customs of marriage, inheritance and dispute settlement.

Facts. In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, the head of the Dawoodi Bohra community challenged the Bombay Prevention of Excommunication Act 1949. Held. By majority, the Act was void. Excommunication on religious grounds was part of the community's management of its religious affairs. Ayyangar J said social reform could not mean reforming a religion "out of existence or identity". Sinha CJ dissented, seeing excommunication as a form of civil death. Why it matters. Tradition defeated a reform law. In 2016 Maharashtra passed a law against social boycott. In February 2023 a Constitution Bench sent the correctness of the 1962 ruling to a Bench of nine judges.

Facts. In Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388, trustees of Jain and Parsi trusts challenged State control under the Bombay Public Trusts Act 1950. Held. The State may regulate how religious property is administered, but may not take over the administration or divert funds from their religious purposes. Why it matters. The line between protected tradition and regulable secular activity must be drawn case by case.

The "essential religious practices" test makes this harder still. To decide what is essential to a religion, secular judges must interpret theology.

Complexity five: who speaks for a tradition?

Traditions are not fixed, and they have many voices. Priests, community heads, reformers, women and dissenters within a faith may disagree about what the tradition requires. When a court or legislature asks "what does the tradition say", it must choose whose account to accept. Reformers such as Rammohun Roy and Gandhi argued from within tradition that its harsh practices were corruptions. A progressive society often finds its best allies inside the tradition itself.

Complexity six: law ahead of practice

When law moves faster than tradition, it may be ignored. Dowry was banned in 1961 and is still common, and child marriage persists despite the 2006 Act. A progressive law that ignores culture risks becoming a dead letter. A law that merely follows culture risks entrenching injustice.

How a progressive society resolves the complexities

1. The Constitution as filter. Tradition is respected but must yield to fundamental rights under article 13.
2. Reform through legislation, after debate and consultation, as with the Hindu Code of 1955 and 1956.

Conclusion. Law in India is partly the product of tradition, through custom, personal law and customary tribal law. But in a progressive society that origin creates real complexities. There are many traditions, custom must be proved and limited, religious freedom competes with reform, and popular morality may clash with constitutional morality. Syedna shows tradition prevailing over reform, while Indian Young Lawyers Association and Navtej show reform prevailing. The doubts in both directions are now before larger Benches. The Constitution's answer is to respect tradition as a source of law while subjecting it to fundamental rights. Change should come through legislation, choice and persuasion where it can, and through constitutional morality where it must.