Law and Social Change

The arguments that law CANNOT change society by itself

1. Enforcement depends on the society. Complaints, witnesses, local officials and juries come from the same population whose norms the law opposes.
2. A law opposed by strong mores is evaded, as [Norms and Values] establishes, and its formal existence may conceal the fact that nothing has changed.
3. Access decides who benefits. A right requiring litigation to enforce is available to those who can litigate.
4. Law can produce reaction. A change imposed against a community's belief can strengthen the very identity it opposed, which is the mechanism of [In-groups, Out-groups and Reference Groups].
5. Sumner's proposition, which must be given because it is the classic statement of the sceptical case: stateways cannot change folkways. Legislation cannot alter deep-seated custom, and the attempt only produces evasion.

The answer to Sumner, which is what earns marks: the proposition is too strong. Folkways have in fact been changed with legal help, over time and in combination with education, economic change and organised movements. What is true is the weaker and more useful claim: law alone, and quickly, cannot change folkways; law working with other forces, and over a generation, can.

The two cases, which are the two answers

When law leads and it works

Facts. Vishaka v. State of Rajasthan, brought by Vishaka and others against the State of Rajasthan and others,, AIR 1997 SC 3011, 1997 (6) SCC 241, decided 13 August 1997 by Verma CJI with Sujata V. Manohar and B. N. Kirpal JJ. A writ petition was brought under Article 32 as a class action for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21. There was at that time no Indian legislation on sexual harassment at the workplace, and the Court recorded that the primary responsibility for providing such legislation and a mechanism to enforce it lay with the legislature and the executive.

Held. Sexual harassment at the workplace violates the rights to gender equality and to life and liberty under Articles 14, 15 and 21, and also the right under Article 19(1)(g) to practise any profession or carry on any occupation, since that right depends on the availability of a safe working environment. Because such violation is a recurring phenomenon, a writ of mandamus to be effective had to be accompanied by directions for prevention; and the Court accordingly laid down guidelines and norms under Article 32 to fill the legislative vacuum, to be observed at all workplaces until suitable legislation was enacted.

Why it matters here. It is the clearest Indian instance of law made deliberately to produce a change the society had not yet made for itself, and of the conditions under which such an attempt succeeds. It also makes the sociological point about machinery: guidelines had to wait sixteen years to be replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, which supplied what a judgment cannot, namely a standing institution in every workplace with a duty to act, and it is the institution rather than the norm that produced compliance.

When law leads and it meets resistance

Facts. Mohd. Ahmed Khan v. Shah Bano Begum, the respondents being Shah Bano Begum and others,, AIR 1985 SC 945, 1985 (2) SCC 556, decided 23 April 1985 by a Constitution Bench of Chandrachud CJ with Rangnath Misra, D. A. Desai, O. Chinnappa Reddy and E. S. Venkataramiah JJ. The appellant, an advocate, had married the respondent in 1932 and driven her from the matrimonial home in 1975. In April 1978 she applied under section 125 of the Code of Criminal Procedure for maintenance of Rs 500 a month, his professional income being about Rs 60,000 a year. On 6 November 1978 he divorced her by irrevocable talaq and contended that she had ceased to be his wife and that he was under no further obligation, having paid Rs 200 a month for about two years and deposited Rs 3,000 in court as mahr during the period of iddat. The Magistrate awarded Rs 25 a month; the High Court of Madhya Pradesh raised it to Rs 179.20; the husband appealed by special leave.

Held. The appeal was dismissed. Section 125 of the Code applies to a divorced Muslim wife who is unable to maintain herself, and payment of mahr does not displace that liability: mahr is not an amount payable by the husband to the wife on divorce and so does not fall within section 127(3)(b) of the Code, being an obligation imposed by law as a mark of respect for the wife, as appears from the fact that failure to specify it does not affect the validity of the marriage. The Court also observed that Article 44 of the Constitution, providing for a uniform civil code, had remained a dead letter.

Why it matters here. It is the standing Indian illustration of a legal change running ahead of the settled understanding of a community and producing organised resistance rather than compliance: the decision was followed by the Muslim Women (Protection of Rights on Divorce) Act 1986. The sociological lesson is not that the Court was wrong, which is a question of law and of value; it is that a legal change touching an identity strongly held will be received as an attack on the group rather than as a benefit to the individual, and that the reaction is predictable and must be planned for.

The conditions under which law changes society

This is the section that answers the question, and it should be given as a list, because it converts an argument into an analysis.

1. The law must be known. An unknown right is not exercised.
2. It must be clear and specific. Vague obligations are not complied with and cannot be enforced.
3. It must be enforceable, and enforced. A standing non-enforcement teaches that the law need not be obeyed, which damages the rest of the legal order too.
4. There must be machinery, and it must be local, cheap and quick. This is the single most reliable predictor. The internal complaints committee, the legal services authority and the reserved panchayat seat work because they exist where the person is.
5. The change must have some support in the society, or at least active support from an organised section of it.
6. It should have an ally in another social force: education, economic change, migration or a movement.
7. The cost of compliance must be bearable, or evasion is rational.
8. It should attach the obligation to somebody who can be reached, which is why laws addressed to employers work better than laws addressed to families.
9. Time. The changes that succeeded took a generation, and evaluating a statute after five years will almost always find it a failure.

The Indian record, read against those conditions

Where law led and largely succeeded: the abolition of untouchability, which did not end discrimination and did remove its legal support and create an offence; the rise in the age at marriage, discussed in [Factors and Causes of Social Change] and produced by law working with education and employment; the reservation of seats for women in panchayats, which put a very large number of women into public office and could not have occurred otherwise; and the right to education, given statutory form in 2009.

Where law led and largely failed, or is still failing: the prohibition of dowry since 1961, discussed in [Recent Trends in Marriage], which lacks almost every condition in the list above; the prohibition of manual scavenging, repeatedly strengthened because it was not achieved; and land ceiling legislation, whose implementation varied enormously between states.

The pattern that emerges, and it is worth stating as the chapter's conclusion. Law is most effective where it removes a disability, creates an institution, or confers a right on a person with the means and the motive to claim it. It is least effective where it forbids a practice that both parties to the transaction want, conducted in private, within a family, with no complainant. Dowry has every one of those features, and that, rather than any defect in the drafting of the Act of 1961, is why it has not worked.

A worked example

A state wishes to reduce the number of children withdrawn from school after the eighth standard.

The sceptical position says that education law cannot change what families decide, and it has evidence on its side.

Designing against the list gives a different answer. Make the obligation known, through the school itself. Make it specific: attendance, not a general duty. Attach it to a party who can be reached and who has an interest: the school, which is funded and inspected, rather than the household. Provide local machinery: an officer at the block level rather than a court. Provide an ally: transport and a meal, which alter the household's calculation. Reduce the cost of compliance: free books, no fees, a school within reach. And allow time.

The chapter's argument in one sentence. The question is never simply whether law can change society; it is whether this law, addressed to these people, with this machinery, in these conditions, can, and the list above is how that question is answered.

Quick revision

1. The relation runs both ways: social change produces law (cultural lag), and law produces social change.
2. Law CAN change society: by sanction, by education, by removing disabilities, by redistributing resources, by creating institutions, by legitimating a claim, and by protecting the innovator who departs from custom.
3. Law alone CANNOT: enforcement depends on the same society, strong mores produce evasion, access decides who benefits, and imposed change can produce reaction.
4. Sumner: stateways cannot change folkways. The answer: too strong. Law alone and quickly cannot; law with other forces over a generation can.
5. Vishaka (AIR 1997 SC 3011): guidelines under Article 32 to fill a legislative vacuum, replaced by the Act of 2013, which supplied the institution a judgment could not.
6. Shah Bano (AIR 1985 SC 945): section 125 applies to a divorced Muslim wife and mahr does not displace it; followed by the Act of 1986. The lesson is that change touching a strongly held identity provokes resistance.
7. Conditions for success: known, clear, enforced, local cheap quick machinery, some social support, an ally in another social force, bearable cost of compliance, an obligation attached to a reachable party, and time.
8. Law works best where it removes a disability, creates an institution or confers a claimable right; worst where it forbids a private transaction both parties want, with no complainant.

Test yourself

1. In what two directions does the relation between law and social change run? Law is an effect of social change, since altered conditions produce demands met by legislation and decision, which is cultural lag operating: industrialisation produced labour law, the motor vehicle produced traffic law, and the weakening of the joint household produced the maintenance legislation of 2007. And law is an instrument of social change, since a rule can alter behaviour, remove disabilities, redistribute resources and create institutions, and over time change the attitudes that supported the older arrangement.

2. State Sumner's proposition and the answer to it. Sumner held that stateways cannot change folkways: legislation cannot alter deep-seated custom, and the attempt produces only evasion. The answer is that the proposition is too strong, since folkways have in fact been changed with legal help, in the age at marriage, in the position of daughters in property and in the disabilities attached to caste. What survives is a weaker and more useful claim: law alone and quickly cannot change folkways, while law working with education, economic change and organised movements, over a generation, can.

3. What does Vishaka illustrate about law and social change? That law can be made deliberately to produce a change the society has not made for itself. The Court held that sexual harassment at the workplace violates Articles 14, 15, 19(1)(g) and 21, and, there being no legislation, laid down guidelines under Article 32 to fill the vacuum until Parliament acted. It also illustrates the limits of a judgment as an instrument: the guidelines required sixteen years and the Act of 2013 before the essential machinery, a standing committee in every workplace with a duty to act, existed, and it was the institution rather than the norm that produced compliance.

4. What does Shah Bano illustrate? That a legal change touching an identity strongly held is received as an attack on the group rather than as a benefit to the individual. The Court held that section 125 of the Code applies to a divorced Muslim wife unable to maintain herself and that payment of mahr does not displace the liability, mahr not being an amount payable on divorce within section 127(3)(b). The decision was followed by the Muslim Women (Protection of Rights on Divorce) Act 1986. The sociological lesson concerns the predictability of the reaction rather than the correctness of the decision.

5. State the conditions under which law succeeds in producing social change. That the law is known to those it benefits; that it is clear and specific; that it is enforceable and actually enforced, since standing non-enforcement teaches that law need not be obeyed; that there is machinery which is local, cheap and quick, which is the most reliable predictor of all; that some section of the society actively supports it; that it has an ally in another social force such as education or economic change; that the cost of compliance is bearable; that the obligation is attached to a party who can be reached and has something to lose; and that it is given a generation rather than five years.