What Law Cannot Do: The Limits of Legislating Change
Chapter Three
Syllabus topic 1, "Law and Social Change". The other half of the thesis in the previous chapter.
Pages 12 to 16 of 768
In one line
A statute changes a society only where somebody can invoke it, somebody will enforce it, and the change it asks for is not so far from what people do that they will simply carry on.
In the wording a student can write in an exam: the capacity of law to bring about social transformation is real but conditional. Five conditions limit it. First, the gap between the legal rule and the prevailing social norm may be so wide that the rule is ignored. Secondly, enforcement depends on an administration drawn from the same society and often sharing its attitudes. Thirdly, the person the law protects is usually the person least able to reach a court, so a right without access is a right on paper. Fourthly, a prohibition drives a practice out of sight rather than out of existence, which makes proof impossible. Fifthly, law reaches conduct and not belief, so it can stop an act while leaving intact the attitude that produced it. The consequence is not that law is useless but that legislation is the beginning of a process and not the end of one.
The five limits
One: the gap between the rule and the norm
A law that asks for a small step gets taken; a law that asks for a leap gets ignored. The Hindu Widows' Remarriage Act 1856 legalised the remarriage of Hindu widows. It was a complete answer in law and made almost no difference for a century, because the disability it removed was social and the Act removed only the legal one.
The same gap explains why registration works where prohibition does not. Compulsory registration of a marriage does not ask anybody to approve of anything; it asks for a form. Prohibiting a marriage asks a family to abandon a decision it has already made.
Two: enforcement is done by people from the same society
A statute is administered by police officers, revenue officials, magistrates and inspectors who grew up in the society the statute is aimed at. Where the practice being prohibited is one their own community follows, or one the locally powerful benefit from, the statute meets its first obstacle before it reaches a court.
Facts. State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126, decided 1 December 1992 by Kuldip Singh, Ramaswamy and Sahai JJ. The accused had, by show of force, restrained members of a Scheduled Caste from taking water from a newly dug borewell on the ground that they were untouchables. The trial court convicted them under section 4 of the Protection of Civil Rights Act 1955; the Sessions Court acquitted; the High Court affirmed the acquittal.
Held. The Supreme Court restored the conviction. The evidence established that the respondents had prevented the complainant from taking water on the ground of untouchability, and the Act had to be construed so as to advance its object. The Court dealt at length with the social reality behind article 17, observing that untouchability is a lingering practice and that the courts must give the legislation a purposive construction rather than a technical one.
What Law Cannot Do: The Limits of Legislating Change
Why it matters here. The offence was proved, and it still took two appeals for the conviction to stand. The case is the standing illustration in this paper of how far a criminal statute has to travel through an administration and a judiciary before it produces the result the legislature wanted.
Three: the protected person cannot reach the court
The bonded labourer, the pavement dweller, the child in a workshop and the woman in a violent household have this in common: they cannot litigate. They have no money, no lawyer, often no literacy, and in most cases no way of being absent from where they are for a day.
This is the limit that Indian law has tried hardest to answer. The relaxation of standing in S.P. Gupta v. President of India, 1981 Supp SCC 87, the treatment of a letter as a petition in People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235, and the appointment of commissioners in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, are all attempts to remove the same obstacle, and they are dealt with in [Judicial Activism and Public Interest Litigation].
But the answer is partial. Public interest litigation depends on somebody else bringing the case, which means the change reaches the groups that have an organisation speaking for them and not the ones that do not.
Four: prohibition drives a practice out of sight
Dowry is prohibited, and dowry is universal. The reason is in the structure of the offence: both families are parties to it, both would be prosecuted, and the only witnesses are the two families.
Sex selection is prohibited, and the sex ratio at birth tells us it continues. The prohibited act happens in a clinic between a doctor and a patient, both of whom want it to happen and neither of whom will complain.
The general point is that a prohibition needs a complainant. Where the statute makes both sides of a transaction liable, or where the only person harmed is not yet born, or is a child, the offence is committed without anybody to report it.
Five: law reaches conduct, not belief
Article 17 abolished untouchability, and the Act of 1955 punishes its practice. Neither obliges anybody to change what they think about caste, and neither could.
What Law Cannot Do: The Limits of Legislating Change
This is not a defect in the drafting. A liberal legal order cannot legislate belief; it can only regulate conduct and hope that the conduct changes the belief in time. Ambedkar's argument, that political democracy cannot survive on a base of social inequality, is exactly this point stated as a warning.
The practical consequence is that the same statute produces different results in different places. Where the surrounding attitude has shifted, the law is enforced and complied with; where it has not, the law is a formality.
The other half: the law is not therefore useless
Because a legal rule changes what people can defend. After article 17, the practice of untouchability is not merely disapproved of; it is unlawful, and the person practising it is on the wrong side of the Constitution. That is a different position to argue from.
Because it gives the person who wants to resist something to hold on to. A daughter who wants her share, a woman who wants to leave, a boy who wants to go to school: each of them now has a rule to point at, whether or not they can reach a court today.
Because institutions accumulate. A Commission that publishes a report every year, a Child Welfare Committee that sits, a Legal Services Authority that runs a Lok Adalat, all change the surroundings slowly even when no individual case is spectacular.
And because the law can be redesigned when it fails. The Protection of Civil Rights Act 1955 largely failed, and Parliament answered with the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, which is a much sharper instrument. Section 15A of the 1955 Act, inserted in 1976, requires the State Governments to take specific measures including legal aid, special courts and periodic surveys, which is an admission in the statute itself that a prohibition alone had not worked.
A worked example
Take a village where the Scheduled Caste families are not served at the tea stall. The law forbids it: article 15(2), article 17 and section 4 of the Protection of Civil Rights Act.
Now follow the case. Somebody must complain, to a police station where the officer may be from the dominant community and where the accused is a local shopkeeper. A charge must be framed and witnesses must give evidence, and every witness lives in the village and will still live there after the trial. The trial takes years, during which the complainant's family draws its water and buys its groceries from the same people.
And now change one fact at a time. Give the complainant a Legal Services Authority lawyer, and the case survives longer. Move the trial to a Special Court under the Act of 1989, and it moves faster. Make the offence one where the officer must register a first information report, and the first stage stops failing. Each is an answer to one of the five limits, and none of them is an answer to the fifth.
What Law Cannot Do: The Limits of Legislating Change
Distinctions worth keeping straight
| A law that works | A law that does not | |
|---|---|---|
| Distance from the norm | Small, or the norm is already shifting | Large, and the norm is intact |
| Who complains | Someone who is harmed and can speak | Both parties benefit, or the victim is a child |
| Who enforces | An official with a duty and a deadline | An official with a discretion |
| Access | A forum the protected person can reach | A civil court in the district town |
| What it asks for | A change in conduct | A change in belief |
What this does NOT mean
It does not mean law should not attempt what society resists. If law only codified the existing consensus it could never transform anything, and the Constitution would be a description rather than a programme.
It does not mean the failures are the fault of the drafting. Most of the statutes in this paper are competently drafted. What they lack is the surrounding machinery, and that is a budgetary and administrative failure rather than a legislative one.
And it does not mean the two chapters contradict each other. The thesis is that law is an instrument. This chapter says what kind of instrument: a slow one that needs to be held.
Quick revision
Five limits: the gap between rule and norm; enforcement by officials drawn from the same society; the protected person's inability to reach a court; prohibition without a complainant; and the reach of law over conduct but not belief. Appa Balu Ingale: conviction under section 4 of the 1955 Act restored after two acquittals, and the standing illustration of limit two. Bandhua Mukti Morcha: a prohibition since 1976 with no route to a remedy, and the Court supplying the route. Section 15A of the 1955 Act is Parliament admitting in the statute that prohibition alone had failed. The Act of 1989 is the redesign.
Test yourself
1. Name the five limits. The gap between the legal rule and the social norm; enforcement by an administration drawn from the same society; the protected person's inability to reach a forum; prohibition without a complainant; and the reach of law over conduct but not belief.
2. Why does a prohibition on dowry or on sex selection fail in a way that a prohibition on theft does not? Because both parties to the transaction want it to happen and neither will complain, so the offence produces no complainant. A theft produces a person who has lost something and will report it.
What Law Cannot Do: The Limits of Legislating Change
3. What did Appa Balu Ingale decide, and why is it in this chapter? It restored a conviction under section 4 of the Protection of Civil Rights Act 1955 for preventing members of a Scheduled Caste from taking water from a borewell, and held that the Act must be given a purposive construction. It is here because the offence was proved and the conviction still needed two appeals, which is the enforcement limit in a single case.
4. What does section 15A of the Protection of Civil Rights Act tell you about the success of that Act? That Parliament itself concluded prohibition had not worked. Section 15A, inserted in 1976, obliges State Governments to provide legal aid, to set up special courts, to appoint officers and to conduct periodic surveys, which is machinery being added because the offence provisions alone had produced very little.
5. Does the existence of these limits defeat the instrumentalist thesis? No. It qualifies it. Law changes the terms on which a practice can be defended, gives the person who resists something to invoke, builds institutions that accumulate, and can be redesigned when it fails, as the Act of 1989 redesigned the Act of 1955. What it cannot do is produce the change by being enacted.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.