Law And Social Transformation
How Society changes Law
"Change is the only constant", very rightly said by Greek philosopher Heraclitus. If people from 100 years back look at India today, they will see uncountable changes. Be it computers, new weapons, recognition of new gender types, new life-saving machines, level of equality between men and women, women picking up arms on battlefields, new forms of crimes etc.
Such changes in society were followed by changes in pre-existing laws and also resulted in the formation of entirely new acts and regulations. Before we talk more about the transformation of law and society, it is crucial to define the terms involved. Having only one fixed definition of the word 'Law' would be doing an injustice to this term. Laws are specific sets of rules and regulations laid down by the ruling or superior authority to regulate people's actions.
These laws constantly keep on evolving. Laws are flexible and can be amended, and in India, we have the freedom to do so. 'Societal changes' refer to noticeable variations in the social order of society, which may include changes in social relations, institutions or behaviour. The law is subject to change with the change in society and also change in the Government/legislative through the amendments/Acts.
A lot has changed in the past few years. Conventionally women were treated as a liability, with no individual character and no recognition of rights. Such an image created by society undermined her position as an individual person and gave rise to social evils like molestation, sati, dowry deaths, rapes, etc. Consequently, the legislative mechanism had to contend with these social situations[1].
The majority of women's issues were seen in the 19th century, which came under the spotlight, and reforms began to be made. During the mid-colonial era, efforts were being made to counter the growing influence of European culture in India.
This was when the reformers tried to create a new society, modern yet rooted to the Indian community. Thus an effort to build a society devoid of social aberrations like sati, polygamy, patriarchy, etc., started. Efforts were being made to create new Indian women, truly Indian but sufficiently educated to suit the contemporary emerging society[2].
The year 1850-1915 came to be known as the first phase of the Feminist movement in India[3]. Subsequent years saw a lot of changes in law because society started recognizing women's rights. As society evolved, the law did too.
After the Women's suffrage movement of 1905-08, British provinces in India began to extend women's suffrage rights[4]. Women kept pushing, and the government of India act 1935 finally expanded their suffrage rights. Universal suffrage was provided to them by the Indian constitution in 1950. We have come a long way, achieving many milestones.
As society started recognizing crimes against women, a need was felt to make new laws and amend them wherever needed. Earlier, women were considered properties of their husbands and reflection of the same was seen in many sections of the law, like section 497 of the Indian Penal Code, which criminalized Adultery. According to which, the man who had sexual intercourse with another man's wife without the latter's consent is the only one who has committed the crime.
Women are not punished for being adulteress. Sub-section (2) treats the women's husband as the aggrieved by an offence committed under this section. The wife did not have the right to file a complaint, and according to the law, it was not an offence for a married man to engage in the act of sexual intercourse with a single woman.[5]
This view of protection only serves to place women in a cage. This law was considered discriminatory, and grounded in paternalistic and patriarchal notions. In the case of Joseph Shine vs. Union of India, section 497 was struck down as unconstitutional being violative of Articles 14, Article 15 and Article 21 of the Constitution and Section 198(2) of the CrPC was deemed to be unconstitutional, only to the extent that it is applicable to the offence of Adultery[6]. The judges said that these old sections have served their purpose and as time and society changes, they must be changed too[7].
A result of societal changes was that people started educating girl child, programs like Beti bachao- Beti padhao are perfect representation of a quest to make the women of our society, literate. Women soon became aware of their rights, and they started taking a stand for themselves. One such lady was Shayara Bano, who approached the court and questioned the year-old triple talaq tradition, violating the fundamental right under article 14 of the Indian constitution. In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat'-triple talaq[8] was set aside in the case, Shayara Bano and Ors. Vs Union of India (UOI) and Ors[9]. This became a cause of celebration among women of the Muslim community.
For a long time, society and traditional laws recognized only two genders: Male and Female. Slowly and gradually, a third gender category was added. Today there are more than 72 gender types all over the world. One hundred fifty years ago, the colonial legislature made consenting adults of the same gender find love fulfillment, criminal.
The issue of morality made such relationships hateful. It's been years since India gained independence, but lord Macaulay's legacy of the offence Under IPC Section 377, which criminalizes consensual sex, has continued to exist for nearly sixty-eight years after we gave ourselves a constitution.
In India, the use of social media and several corporate initiatives have increased awareness about 'LGBTQ rights' in society. Young India is a very open-minded India, ready to accept dynamic changes in society. "Our ability to recognize others who are different is a sign of our own evolution"[10]. Several activists have estimated the population of LGBTQ people in India to be at least 10% of the entire population[11].
For the community as a whole, Navtej Singh Johar and Ors. Vs Union of India (UOI) and Ors[12] was a landmark judgment. After years of grassroots activism, finally, article 377 was ruled unconstitutional. This was a perfect example of law molding itself to keep up with society.
If someone from post-independence India looks at this fast-developing country today, he is sure to notice easy internet availability today. By the 1990s, there was increased reliance on technology. The introduction of new technologies allowed attackers to develop more straightforward methods to infiltrate data and steal important information. The subsequent years saw a lot of cybercrime. The very first case of cybercrime in India was Yahoo Vs Akash Arora[13] To curb the growing internet crimes in their budding phase, The Information and Technology Act, 2000 was passed.
Soon the internet became an essential part of our lives, being a necessary tool for trade and commerce, education, sharing views and opinions etc. In the case Anuradha Bhasin and Ors. vs. Union of India (UOI) and Ors[14], the court recognized the right to the internet as a fundamental right under article 19 of the Indian constitution. All the cases as mentioned earlier show a proper chronological order where the dynamics of social change first and then to keep up with those changes, the law is changed.
There is another school of thought, which believes that law changes society. They say that law is rigid and impartial and ensures justice, and because it instills fear of punishment in the community's mind, people are bound to change. But, most of the time ever after stringent penalties ensured by law, crimes continue to happen. To prove this point, crimes against women would be perfect examples.
When we talk about the heinous crime of rape, amendments were made in rape laws in the year 2013 after widespread protests in 2012 because of the Nirbhaya case.[15] Where punishment was made more stringent for this offence, but even after this, subsequent years saw a surge in rape cases. 2016 observed 38,947 registered rape cases[16], being the highest record. Thus one cannot say that change in the law is sure to bring change in society.
For any society or community to survive, change is essential. In science, we study the physical evolution of humans, which takes millions and millions of years to happen. But the behavioral shift of people happens quicker than that. Law conducts the behavior of people and rights the wrong, so it is essential that law evolves too. Our constitution is considered as a living document because it is subject to amendments as and when required. To date, the constitution has been amended 104 times, and 835 new acts have been introduced from the year 1947 to 2019[17].
The honorable judges of our country have started acknowledging the fact that old laws have served their purpose, and it's time we get done away with them. Recently the chief justice of our country, Justice N.V. Raman, questioned the colonial-era law, the law of sedition. Youth today is provided with platforms where they can openly criticize people in power and put forth their views and opinions.
Still, such archaic laws are being misused to punish innocent people. CJI says that such old laws being misused are a "serious breach of functioning of institutions"[18]. The world is moving in a swift pace it's important that law keeps us with this pace of society and keeps updating itself. Like water takes the shape of the earthen pot, it is kept in, law should mould itself according to societal needs too.
End-Notes:
"Change is the only constant", very rightly said by Greek philosopher Heraclitus. If people from 100 years back look at India today, they will see uncountable changes. Be it computers, new weapons, recognition of new gender types, new life-saving machines, level of equality between men and women, women picking up arms on battlefields, new forms of crimes etc.
Such changes in society were followed by changes in pre-existing laws and also resulted in the formation of entirely new acts and regulations. Before we talk more about the transformation of law and society, it is crucial to define the terms involved. Having only one fixed definition of the word 'Law' would be doing an injustice to this term. Laws are specific sets of rules and regulations laid down by the ruling or superior authority to regulate people's actions.
These laws constantly keep on evolving. Laws are flexible and can be amended, and in India, we have the freedom to do so. 'Societal changes' refer to noticeable variations in the social order of society, which may include changes in social relations, institutions or behaviour. The law is subject to change with the change in society and also change in the Government/legislative through the amendments/Acts.
A lot has changed in the past few years. Conventionally women were treated as a liability, with no individual character and no recognition of rights. Such an image created by society undermined her position as an individual person and gave rise to social evils like molestation, sati, dowry deaths, rapes, etc. Consequently, the legislative mechanism had to contend with these social situations[1].
The majority of women's issues were seen in the 19th century, which came under the spotlight, and reforms began to be made. During the mid-colonial era, efforts were being made to counter the growing influence of European culture in India.
This was when the reformers tried to create a new society, modern yet rooted to the Indian community. Thus an effort to build a society devoid of social aberrations like sati, polygamy, patriarchy, etc., started. Efforts were being made to create new Indian women, truly Indian but sufficiently educated to suit the contemporary emerging society[2].
The year 1850-1915 came to be known as the first phase of the Feminist movement in India[3]. Subsequent years saw a lot of changes in law because society started recognizing women's rights. As society evolved, the law did too.
After the Women's suffrage movement of 1905-08, British provinces in India began to extend women's suffrage rights[4]. Women kept pushing, and the government of India act 1935 finally expanded their suffrage rights. Universal suffrage was provided to them by the Indian constitution in 1950. We have come a long way, achieving many milestones.
As society started recognizing crimes against women, a need was felt to make new laws and amend them wherever needed. Earlier, women were considered properties of their husbands and reflection of the same was seen in many sections of the law, like section 497 of the Indian Penal Code, which criminalized Adultery. According to which, the man who had sexual intercourse with another man's wife without the latter's consent is the only one who has committed the crime.
Women are not punished for being adulteress. Sub-section (2) treats the women's husband as the aggrieved by an offence committed under this section. The wife did not have the right to file a complaint, and according to the law, it was not an offence for a married man to engage in the act of sexual intercourse with a single woman.[5]
This view of protection only serves to place women in a cage. This law was considered discriminatory, and grounded in paternalistic and patriarchal notions. In the case of Joseph Shine vs. Union of India, section 497 was struck down as unconstitutional being violative of Articles 14, Article 15 and Article 21 of the Constitution and Section 198(2) of the CrPC was deemed to be unconstitutional, only to the extent that it is applicable to the offence of Adultery[6]. The judges said that these old sections have served their purpose and as time and society changes, they must be changed too[7].
A result of societal changes was that people started educating girl child, programs like Beti bachao- Beti padhao are perfect representation of a quest to make the women of our society, literate. Women soon became aware of their rights, and they started taking a stand for themselves. One such lady was Shayara Bano, who approached the court and questioned the year-old triple talaq tradition, violating the fundamental right under article 14 of the Indian constitution. In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat'-triple talaq[8] was set aside in the case, Shayara Bano and Ors. Vs Union of India (UOI) and Ors[9]. This became a cause of celebration among women of the Muslim community.
For a long time, society and traditional laws recognized only two genders: Male and Female. Slowly and gradually, a third gender category was added. Today there are more than 72 gender types all over the world. One hundred fifty years ago, the colonial legislature made consenting adults of the same gender find love fulfillment, criminal.
The issue of morality made such relationships hateful. It's been years since India gained independence, but lord Macaulay's legacy of the offence Under IPC Section 377, which criminalizes consensual sex, has continued to exist for nearly sixty-eight years after we gave ourselves a constitution.
In India, the use of social media and several corporate initiatives have increased awareness about 'LGBTQ rights' in society. Young India is a very open-minded India, ready to accept dynamic changes in society. "Our ability to recognize others who are different is a sign of our own evolution"[10]. Several activists have estimated the population of LGBTQ people in India to be at least 10% of the entire population[11].
For the community as a whole, Navtej Singh Johar and Ors. Vs Union of India (UOI) and Ors[12] was a landmark judgment. After years of grassroots activism, finally, article 377 was ruled unconstitutional. This was a perfect example of law molding itself to keep up with society.
If someone from post-independence India looks at this fast-developing country today, he is sure to notice easy internet availability today. By the 1990s, there was increased reliance on technology. The introduction of new technologies allowed attackers to develop more straightforward methods to infiltrate data and steal important information. The subsequent years saw a lot of cybercrime. The very first case of cybercrime in India was Yahoo Vs Akash Arora[13] To curb the growing internet crimes in their budding phase, The Information and Technology Act, 2000 was passed.
Soon the internet became an essential part of our lives, being a necessary tool for trade and commerce, education, sharing views and opinions etc. In the case Anuradha Bhasin and Ors. vs. Union of India (UOI) and Ors[14], the court recognized the right to the internet as a fundamental right under article 19 of the Indian constitution. All the cases as mentioned earlier show a proper chronological order where the dynamics of social change first and then to keep up with those changes, the law is changed.
There is another school of thought, which believes that law changes society. They say that law is rigid and impartial and ensures justice, and because it instills fear of punishment in the community's mind, people are bound to change. But, most of the time ever after stringent penalties ensured by law, crimes continue to happen. To prove this point, crimes against women would be perfect examples.
When we talk about the heinous crime of rape, amendments were made in rape laws in the year 2013 after widespread protests in 2012 because of the Nirbhaya case.[15] Where punishment was made more stringent for this offence, but even after this, subsequent years saw a surge in rape cases. 2016 observed 38,947 registered rape cases[16], being the highest record. Thus one cannot say that change in the law is sure to bring change in society.
For any society or community to survive, change is essential. In science, we study the physical evolution of humans, which takes millions and millions of years to happen. But the behavioral shift of people happens quicker than that. Law conducts the behavior of people and rights the wrong, so it is essential that law evolves too. Our constitution is considered as a living document because it is subject to amendments as and when required. To date, the constitution has been amended 104 times, and 835 new acts have been introduced from the year 1947 to 2019[17].
The honorable judges of our country have started acknowledging the fact that old laws have served their purpose, and it's time we get done away with them. Recently the chief justice of our country, Justice N.V. Raman, questioned the colonial-era law, the law of sedition. Youth today is provided with platforms where they can openly criticize people in power and put forth their views and opinions.
Still, such archaic laws are being misused to punish innocent people. CJI says that such old laws being misused are a "serious breach of functioning of institutions"[18]. The world is moving in a swift pace it's important that law keeps us with this pace of society and keeps updating itself. Like water takes the shape of the earthen pot, it is kept in, law should mould itself according to societal needs too.
End-Notes:
- Karanjawala, T., & Chugh, S. (2009). The legal battle against domestic violence in India: Evolution and analysis. International Journal of Law, Policy and the Family, 23(3), 289-308
- Pande, R. (2018). The History of Feminism and Doing Gender in India. Estudos Feministas, 26(3), 1�17. https://www.jstor.org/stable/26538500
- Pande, R. (2018). The History of Feminism and Doing Gender in India. Estudos Feministas, 26(3), 1�17. https://www.jstor.org/stable/26538500
- Stanton, E. (1922). History of Woman Suffrage. Rochester, N.Y., S.B. Anthony
- Adultery [S. 497 IPC and S. 198(2) CrPC], 2019 SCC OnLine Blog LME 3
- Joseph Shine vs. Union of India (UOI) (27.09.2018 - SC) : MANU/SC/1074/2018
- Rohinton Fali Nariman, Joseph Shine vs. Union of India (UOI) (27.09.2018 - SC) : MANU/SC/1074/2018
- https://www.familylaw.co.uk/news_and_comment/the-different-methods-of-islamic-separation-part-2-the-different-types-of-talaq
- Shayara Bano and Ors. vs. Union of India (UOI) and Ors. (22.08.2017 - SC) : MANU/SC/1031/2017
- Dr. D.Y. Chandrachud, Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. (06.09.2018 - SC) : MANU/SC/0947/2018
- Chahat Rana(2020), In another realm, Indian express. https://indianexpress.com/article/india/in-another-realm-lgbtq-community-networking-population-in-india-stigma-around-homosexuality-6235390/
- Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. (06.09.2018 - SC) : MANU/SC/0947/2018
- Yahoo Vs Akash Arora, I.A. NO. 10115/1998. IN SUIT NO.2469/1998
- Anuradha Bhasin and Ors. vs. Union of India (UOI) and Ors. (10.01.2020 - SC) : MANU/SC/0022/2020
- Mukesh vs. State of NCT of Delhi (09.07.2018 - SC) : MANU/SC/0710/2018
- https://www.indiatoday.in/india/story/24-more-rapes-per-day-since-nirbhaya-was-gangraped-in-2012-1657646-2020-03-20
- https://legislative.gov.in/documents/legislative-references/list-of-acts-yearwise
- https://economictimes.indiatimes.com/news/india/misuse-of-sedition-laws-breaches-functioning-of-institutions-says-chief-justice/articleshow/84453904.cms
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