1. Critically and analytically explain the, “Law as an instrument of social change.” 2. Law as the product of traditions and culture. 3. Criticism and evaluation of law in the light of colonization. 4. The Introduction of common law system and institutions in India and its impact on further development of law and legal institutions in India.

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1. Critically and analytically explain the, “Law as an instrument of social
change.”
Law is the reflection of the will and wish of the society. It is said that if you want to study
any society, you have to study the laws enacted by that society and you come to know
whether the society is developed or wild world. The law, though it is the product of the
society is responsible for the social transformations. In fact, there are two modes of this
aspect. First is, “Law changing the society”, which means that the law of the land compels
the society to be changed according to it. And secondly is. “Society changes the law”, as per
its needs. It needs. It means law is made by the society according to its requirement by its
democratic institution i.e. Legislative or by adopting custom and usage. When law changes
the society it is the sign of beginning of the development of the society. When society
changes law it is the sign of maturity of the society.
 Definitions of law and social change:
The laws are variously defined by the scholars:
According to Duguit, laws are “the rules of conduct normal men know they must observe in
order to preserve and promote the benefits derived from life in society.”
Austin defined Law as “the Command given by a superior to an inferior”.
Roscoe Pound stated, “Laws must be stable and yet cannot be stand still.”
As defined by Lundberg and others “Social Change refers to any modification in
established patterns of inter-human relationship and standards of conduct.” The definition is
very apt and properly encompasses all ingredients of the social change.
Social change happens because of a few calculates, for example, changes innovation,
demography and philosophy, changes in political life and financial strategy and in legitimate
standards or institutions. American Judge Benjamin Cordozo said that the "Last reason for
law is the welfare of society". Law ought not be definite but rather should be transformable as
per the prerequisite and need of the general public. The law can't stay unchanging. The
analyst is of the view that in a changing society law should walk tuned in to the changed
thoughts and philosophies. Social life has experienced changes in view of correspondence
upheaval. Thus to keep in pace with the innovative improvement, Law must be able for
identification of different violations and anticipation of the same.
 Connection amongst Law and Social Change:
Law is the best instrument of social change however now and again social changes progresses
toward becoming law. In India there are two principle foundations which rolls out
improvement in law:

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 to be specific the law-making body where new laws are sanctioned or alterations are
done to the old demonstrations to suit the need of great importance.
 The second foundation is our legal, where understanding of the management of land
and law of land exist together.
Law ought not be definite but rather should change as per the prerequisite and need of the
general public emerging out of taking a break. Law and especially legislation, is a vehicle
through which a programmed social evolution can be brought about.
Social change is being created by revolution, protest, politics, communities, and by direct
action. Elements of social change can be separated as follows:
1. Physical or geographical
2. Biological
3. Economic
4. Cultural
5. Psychological
6. Technical
7. Population
Laws are made with respect to the above fields of life, from time to time, to give effect to the
changes demanded by the society due to development which in turn makes “law as an
instrument of social change.”
 Law contributing to social change:
The law can't stay unchanging. In a changing society law should walk tuned in to the changed
thoughts and philosophies. Thus to keep in pace with the innovative improvement, Law must
be able for identification of different violations and anticipation of the same moreover.
The Indian legal system has, for the most part, been observed to be alive to the requirements
of social reasoning. The legislators and the judiciary have brought new ramifications and
added new measurements to the law as per the changing needs of the society. To demonstrate
the instrumentality of law on social change, it is important to consider some uncommon
changes that have occurred in India:
1) Disallowance of child marriage: Child marriage was a routine found in Indian culture
among various religious groups. Extreme endeavours were made by numerous
reformers to restrict child marriage but they turned out to be worthless until the point
that a law was made. The Hindu Child Marriage Restraint Act was substituted by the
restriction of Child Marriage Act 2006. Its introduction expanded the power of the
Family Court to choose the issue under the Act. It also increased the punishment with
upto 2 years rigorous imprisonment or with fine upto Rs 2 lakh or with both.

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2) Right to free and compulsory education: In the case of Mohini Jain vs. State of
Karnataka (1989) the SC recognized Right to education as a fundamental right. The
SC held that the right to education springs from right to life. The right to life under
Article 21 and the dignity of the individual cannot fully be appreciated without the
enjoyment of right to education. In 2002 the Constitution was amended by inserting
Article 21A to execute the privilege to free and compulsory education of each child
aged between 6–14 years and inserted principal obligations of parent and guardian. In
2010 The Right of Children to Free and Compulsory Education Act 2009 was enacted
with effect from 1st April to give free and compulsory education from 1st to 8th
standard to each child. Along these lines it can be seen that law has contributed to the
development of the life of children.
3) Public Interest Litigation: The Hon’ble Supreme Court of India liberalised the locus
standi for filing writ petitions and introduced public interest litigation which can be
filed even by that person who is not the direct victim of the violation of his or her
right. Such cases may occur when the victim does not have the necessary resources to
commence litigation or his freedom to move court has been suppressed or encroached
upon. The court can itself take cognizance of the matter and proceed suo motu or
cases can commence on the petition of any public-spirited individual. Thus law
liberalised the locus standi for filing petitions in cases where the rights of a group of
people have been violated.
4) Laws for Rape victims: Many cases of rape, especially rape on young and minor girls
have come forward in recent times in response to which the legislators introduced the
Criminal law (Amendment) Act 2013 which laid down some new classes of offences
with respect to violence against women and laid down strict punishments for rape
offenders including capital punishment for repeat offenders in certain cases.
5) Abolition of Untouchability: The established pattern of Inter-human relationship
between Caste Hindus and Scheduled Castes was that of touch-me-not-ism as the
same was thought to be polluting them i.e. the Caste Hindus. The social change in the
above dogmatic stratification really called for modification in the changing and
already changed social scenario following independence in 1947 and following
coming in force the constitution of India the standards of conduct of Caste Hindus
were required to change in time with Constitutional Provisions. Thus modification in
established patterns of inter-human relationship and standards of conduct was brought
through legal means mainly the Constitution of India and the equal laws like I.P.C.
(Indian Penal Code) / Cri.P.C. (Code of Criminal Procedure) / Evidence Act etc. and
finally and especially through the Untouchability (Offences) Act, 1955 and the
Protection of Civil Rights Act, 1955 (Amended with new name in 1976) and the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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Thus, social issues are interconnected as opposed to be separated and law is a mirror to know
how people are identified with each other. Successful execution of law as an instrument or
gadget of social change should work in association with social and social existence of
individuals of India.
2. Law as the product of traditions and culture.
Some believe that in the olden days men lived in a perfect state of happiness and such a time
was golden time for man. Indian people admire “Satyug” like anything and always found
lamenting that society has deteriorated in “Kaliyug” a time not so desirable and full of all
sorts of deceit, conceit, cheating and fraud. According to Indian mythology man has passed
through four ages (1) Sat Yug (2) TretaYug (3) DwaparYug and (4) Kali Yug. The Sat Yug
was the best age in which man was honest, truthful and perfectly happy. Thereafter
degeneration and deterioration began to take place. The modern age of Kali Yug is the worst
period where in man is said to be deceitful, treacherous, false, dishonest, selfish and
consequently unhappy. This concept is found in Hindu mythology, according to which Sat
Yug will again start after the period of Kali Yug is over. But looking to various wars fought
between different Kings and Emperors in those times, we come across many examples
wherein deceit, treachery, falsehood, dishonesty, selfishness and all vices even from today’s
point of view were order of the day and even there were no regulatory mechanism to check
the same. There was no room for rights of women, Rights of Dalits and noble principles of
Liberty, Equality and Fraternity which are noblest cornerstones of to-day’s polity. It all
depends on how we view the primitive, the past and the present time.
3. Criticism and evaluation of law in the light of colonization.
Social changes can be brought about by various methods. The social change can be brought
by preaching of religions, by launching social reform movements like one done by Raja Ram
Mohan Roy, Swami DayanandSarswati, Justice Ranade, Shahu Maharaj, JotibaPhule,
Gandhiji, and Dr. B.R. Ambedkar and other such prominent social thinkers. But such efforts
have no legal obligations or force of law remedial measures in cases where individuals do not
agree to a prescribed social behaviour and conduct. Such optional, sweet will obedience was
found not bearing desired fruits in right direction and therefore need arose to formulate laws
purely to bring about social change prescribing and providing necessary penal mechanism in
case of not confirming to change and violating provisions of such law which aimed at social
change from extant social process as procedures and practices.
The criticism and evaluation of law in the light of colonization can be understood by studying
the development of the women rights and laws since the colonial period and criticizing the
narrow development of the women laws in the colonial period which is prevalent even in the
present period. Pre-colonial India was characterized by a pluralistic and fragmented cultural,
religious, and political structure in which there was no monolithic Hindu, Muslim, or

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Christian authority.' Multiple tribes, castes, sects, and family groupings crossed religious and
political lines, creating a heterogeneous population that may have had a definite notion of
authority but no corresponding notion of legality. Much of the law of the period was
customary, with adjudication within segregated communities, which gave rise to a common
interpretation by outsiders that pre-colonial India lacked law altogether. When the East India
Company acquired the right to collect revenue in Bengal, Bihar, and Orissa in 1765, the
company had to devise a new political and legal structure for the newly-acquired dominions.
British colonial rule in India began primarily as a political expedient through this quasi-
private entity, the East India Company, to reap the benefits of imperialism without setting up
a fully functioning sovereign state.
Colonial rule changed dramatically after 1858, when the company's rule was replaced by the
Crown as the legal sovereign. Throughout the Victorian period, colonial authority was largely
premised on an ideology of the civilizing mission, both in Indian and English terms. Within
India, the company claimed legitimacy through its mission of defeating and replacing the
Mughal rulers, who had been the source of aristocratic power and succession. Legitimacy
was gained for the English population at home through the self-proclaimed role of
"civilizing" the natives by initiating reforms which represented the enlightenment spirit of the
British, the harbingers of progress and modernity.
After the transfer of power to the English Crown in 1858, there were two competing groups
vying for political and legal legitimacy within India: the British colonial authorities and the
native male elite. In the ebb and flow of political bargaining, the colonial governors generally
ceded authority in family law matters to the customary law of the dominant religions, which
had already gathered together groups that, in pre-colonial times, might not have accepted the
authority of a monolithic Hindu or Muslim creed. Negotiating those relationships and
situations that would be governed by Hindu or Islamic law or would be governed by the
secular (though clearly Christian) colonial law was a difficult task throughout the Victorian
era. In somewhat simplified terms, both the British interpretation of India as a society driven
by religion and their own description of its glorious past compelled the colonial authorities to
accommodate traditional/religious laws of the religious communities within their efforts to
secularize and "enlighten" Indian society. On the other hand, this glory of the ancient Indian
past was utilized by the Indian elite to discourage the logic of the civilizing mission. The
civilizing mission was deemed a way of emasculating Indian men by asserting that they were
not capable of taking care of their own women.
This tussle over legal and political power between the native elites and the colonialists was
fought on the backs of Indian women because it was the alleged degraded position of Indian
women and the barbaric actions of Indian men that justified the colonial mission in the first
place. This brings into the picture a third group, British feminists, who claimed a moral
imperative to reclaim for Indian women the dignity and rights of Western women. Ironically,
of course, English women had very few legal rights during the Victorian period, but that
merely highlighted the problem of women in general. British feminists claimed that they,
rather than English and Indian men, better understood the plight of Indian women. They
claimed that by acquiring legal and political rights at home-particularly the right to vote-they

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would be able to better protect their native sisters. The condition of the Indian women,
particularly within the home, became the battleground on which the contests of power
between Indian and British men and between British men and women were fought.
In a new adversarial world, battles between colonial British interests and native elites focused
heavily on the status of Indian women and matrimonial rights and obligations. The supposed
"barbaric" state of Indian family law, however, was, in large part, a product of the colonial
attempts to codify and canonize private family relations and customs. Many supposed "settled
infallible principles of Hindu and Muslim family law were actually recent constructs that
arose out of English translations of certain religious texts made more patriarchal through
concessions to native elites and religious authorities in the eighteenth and early nineteenth
centuries. The British wanted to bring Western enlightenment to the native Indian family by
abolishing child marriages, sati, the prohibition of the remarriage of widows, purdah, and
similar patriarchal customs that oppressed women.
Abortion reform in England and India occurred in the late 1960s and early 1970s, but the
differences in social context between the two countries make the comparison of the reforms
particularly interesting. In England, abortion had been heavily regulated and restricted within
a predominantly Christian ideology that stressed the sanctity of life and the notion that life
begins at conception. In India, social battles between pro-abortion and antiabortion advocates
never reached the feverish level found in England and America. Thus, when India faced
profound population pressures, the move to legalize abortions was virtually unopposed. In
India, however, when these population pressures created a favourable environment for
loosening abortion restrictions, the Indian Parliament simply adopted the same law that had
been adopted four years earlier in England. Rather than assess the different needs of the two
countries, Indian lawmakers fell back on their colonial past and imported a law created out of
a different context to deal with a different set of needs. And not surprisingly, the law has
proven unable to deal with the unique situation in India of an ingrained patriarchy that
favours male over female children. Consequently, liberal abortion policies have resulted in
widespread female feticide-often forced on unwilling mothers by dominant family members
who want to avoid the costs associated with female children, with some even believing they
are doing girls a favour by relieving them from the fate of growing up in such a patriarchal
society. Without any notion of abortion as an element of women's autonomy and control over
their own reproductive functions, abortion in India has become a tool that wittingly and
unwittingly reproduces colonialism and patriarchy.
In 1967 in England therapeutic abortions were legalized by statute, and the grounds for an
abortion were liberalized beyond the woman's life and health. The 1967 Abortion Act
provided that no one shall be guilty of an offense relating to termination of a pregnancy when
continuation of the pregnancy "would involve risk to the life of the pregnant woman, or of
injury to the physical or mental health of the pregnant woman, or any existing children of her
family, greater than if the pregnancy were terminated."' The Act also legalized abortion for
eugenic reasons if there is a substantial risk that the child, if born, would suffer from serious
physical or mental handicaps.

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Abortion was not regulated in India during the pre-colonial period. But in the nineteenth
century, induced abortion became illegal in India, unless "medically indicated to save the life
of a pregnant woman," as governed by the Indian Penal Code and the Code for Criminal
Procedure. Anyone who performed the miscarriage with an intent to terminate the pregnancy
and without a view to save the life of the pregnant woman was liable for punishment,
including the mother herself. Abortion was legalized in India by the Medical Termination of
Pregnancy (MTP) Act of 1971. This Act was a virtual copy of the 1967 English law, giving
the same therapeutic and eugenic grounds for an abortion. And the law passed with
essentially no dissent. There were two main forces behind the move for liberalization of
abortion:
 the demographers who saw abortion as a means of ending unwanted pregnancies and
thereby an effective way of controlling the population growth; and
 the medical fraternity who were concerned with the way illegal abortions conducted
by nonqualified and untrained medical professionals under unhygienic conditions had
an ill effect on women's health.
On the whole, "there was no serious anti-abortion stream of opinion in India," to challenge
the government's claims that abortion was an appropriate method for limiting population. 36
And none of the pro-abortion voices took a stance on the grounds of women's reproductive
rights. Thus, in its current form, the MTP Act does not grant women the "right" to abortion
but simply permits abortion under certain circumstances, usually as determined by a doctor.
Abortion reforms in India point out the danger of importing laws aimed at solving one
country's problem into another country facing very different problems. In England, abortion
was primarily an issue about women's quality of life, accompanied by a rise in the
domination of the medical profession. But the discourse of women's rights was strongly
articulated, and the law in practice has resulted in relative autonomy for women to make
reproductive decisions. In India, population pressures and infanticide led to a liberalization of
abortion laws, which had quite negative results for women. Pregnant women have very little
autonomy under the Indian law, both because of medical control over the decision to abort
and the lack of a popular demand by women for reproductive rights. The continuing
patriarchal property and family laws, in conjunction with the joint family, leaves many young
wives in disempowered positions, susceptible to the pressures of husbands and families to
abort female fetuses. In countries that have a strong feminist tradition, the law must
accommodate demands by women that they have legally enforceable rights. In countries like
India, the same law that could empower women easily became a tool to further control their
lives.
As seen in the above instance of the criticism of the laws developed for women during the
colonial period and the import of laws, without modifications, from England in some
situations show that the laws made during colonial period as well as the laws made by the
legislators by importing the English laws are not necessarily adequate to the needs of the
Indian society and laws must be made keeping in view the demands and circumstances in

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India rather than importing laws, without modifications, which are unfit to the Indian
scenario.
4. The Introduction of common law system and institutions in India and its
impact on further development of law and legal institutions in India.
Indian Legal System has been compared with 'Triveni” meaning confluence of 3 rivers .Thus,
there are 3 streams which make the Indian Legal System. The first one is that of Common
Law, the second one is that of Civil Law and the third one consists of the Personal and
Customary Laws.
It is generally assumed that India is a Common Law Country. In many countries of the world
where colonisation by England took place; common law is found to be dominant even after
decolonisation. English people took with them to their colonies the legal system which has
come to be known as Common Law system. Common Law simply speaking is Judge made
Law or Case-law.
Setalvad defines common law as:
"those unwritten legal doctrines embodying custom and tradition which have been
developed over the centuries by the courts".
Whenever the disputes between different citizens reach a stage at which one of the parties
seek redressal of the grievance in the court of law, the decisions by the courts are responsible
for the development of Common law. In deciding the disputes between the people, the Judges
interpret and apply Black letter Law or Civil Law if it is available and they decide the cases
on the basis of the principle of Stare Decisis. It is a doctrine that when court has once laid
down a principle of law as applicable to a certain state of fact it will adhere to that principle,
and apply it to all future cases where facts are substantially the same, regardless of whether
the parties and property are the same. Under the doctrine, deliberate or solemn decision of
court made after argument; a question of Law fairly arisen in the case, and necessary to its
determination, is an authority, or binding precedent in the same court, or any other courts of
equal or lower rank in subsequent cases where the very point is again in controversy.
Thus, on the basis of the principle of Stare Decisis, the Judges develop a set of law which is
termed as Common law. If there are no precedents or codified law in respect of a particular
fact situation the Judges apply some very fundamental principles to the dispute and decide the
same. They are the principles of justice, equity and good conscience. In this process Judges,
not only apply the law but they even make the law.
India, being a common law country, derives most of its modern judicial framework from the
British legal system. The British rule in India brought about the introduction and
development of the common law legal system, on which India has based its present judicial
framework. Stages of its development can be seen as follows:

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 In early 17th century, three presidency towns introduced Admiralty Courts(in
Bombay and Madras) and Collector’s Court(in Calcutta).
 In 18th century, uniform judicial system was made for all presidency towns and was
then called Mayor’s Court. After the Royal Charter, the court derived their authority
directly from the crown. A system of appeals to the Privy Council was initiated, and
this marked a historic landmark in the development of the Indian Judicial system,
because the Privy Council functioned as the last court of appeal in India for more than
200 years.
 In late 18th century, Mayor’s Court was replaced with a Supreme Court. This was the
first attempt to create a separate and independent judicial organ in India, under the
direct authority of the King. This court had jurisdiction over civil, criminal, admiralty
and ecclesiastical matters and was required to formulate rules of practice and
procedure. Appeals from this court lay to the Privy Council. Local civil and criminal
justice was left under a system known as the “adalat system”.
 By mid 19th century, the adalat system and Supreme Court were abolished, a High
Court was established in each presidency town, and more were envisaged in other
provinces as well. Privy Council still received appeals from these courts. Thus, this
created a uniform judicial system in India, which, in substance, has largely continued
till today.
 The current Supreme Court of India enjoys the combined jurisdiction of the Privy
Council and the Federal Court, which are no longer in existence. The predecessor of
the present Supreme Court of India was the Federal Court (established in 1937),
which heard appeals from the High Courts, and whose decisions were appealable to
the Privy Council.
In India, the English courts started the development of common law. After independence, the
same was continued under our Constitution by virtue of Article 137. Moreover, Articles 32,
226 and 227 of our constitution give a power of judicial review i.e. our judiciary is
empowered to strike down any legislation if it is found to be violative of the fundamental
rights of citizens. Thus the courts are given wide powers to do justice. We in India have a
unitary and not dual judicial system in the sense that the questions of Central Law and State
law are not decided by different courts. The Indian Courts have over a period of time even
departed from the English common law whenever Indian circumstances and society
demanded such a departure.
Even if there are Codes and Black Better Laws, legislature has its limitations to foresee and
take into consideration all the possible contingencies. Many a times the legislations are vague
or open textured. Thus, it is only the Common law which helps the redressal of disputes by
filling in the gaps in the legislation.
For a long time, the Judges 'brought up in the Common Law tradition denied that they were
law makers. The myth was that they either found the law or interpreted it. Today, it is not
disputed that Judges make the law even in India. There are many occasions where the statutes
do not give direct answers to the issues before the judge and so they have to on the basis of

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their sense of justice in fact carve out new principles of law. Moreover the common law
attitude of 'treating judicial decisions as binding on future courts no longer holds good.
Today's judges '‘believe in overruling the past decisions if found necessary to do so due to
changes in time and circumstances. Today's judges not only find and make law but also state
what the law ought to be. This trend has been notable in India since the decision of
Golaknath. In 1967 the Supreme Court in Golakh Nath v. State of Punjab (1967), held that
the fundamental rights in Part III of the Indian Constitution could not be amended, even
though there was no such restriction in Article 368 which only required a resolution of two
third majorities in both Houses of Parliament. Subsequently, in Keshavanand Bharti v.
State of Kerala (1973), a 13 Judge Bench of the Supreme Court overruled the Golakh Nath
decision but held that the basic structure of the Constitution could not be amended. As to
what precisely is meant by `basic structure’ is still not clear, though some later verdicts have
tried to explain it. The point to note, however, is that Article 368 nowhere mentions that the
basic structure could not be amended. The decision has therefore practically amended Article
368.
Article 21 of the Constitution textually provides the right to life and personal liberty.
However the Indian judiciary exercised judicial activism and read various other rights such as
right to privacy, right to food, right to a fair trial, right to health and medical care, protection
of tanks, ponds, forests etc. which give a quality life, right to Family Pension, right to legal
aid and counsel, right against sexual harassment, right to medical assistance in case of
accidents, right against solitary confinement, right against handcuffing and bar fetters, right
to speedy trial, right against police atrocities, torture and custodial violence, right to legal aid
and be defended by an efficient lawyer of his choice, right to interview and visitors according
to the Prison Rules, right to minimum wages etc. to be included into “right to life” under
Article 21 of the Constitution.
In the case of Naz Foundation v. Govt. of NCT of Delhi (2009) the Court adopted the
principle of severability and declared section 377 of IPC as unconstitutional insofar it
criminalises consensual sexual acts of adults in private. The judgement keeps intact the
provision insofar as it applies to non-consensual non-vaginal intercourse and intercourse with
minors. In September 2018 the Court ruled unanimously in Navtej Singh Johar v. Union of
India that Section 377 was unconstitutional.
In the case of R.K.Garg vs. Union of India (1981) the Court found the Special Bearer Bonds
(Immunities and Exception) Act, 1981 to strike at arbitrariness and held the Act to be invalid.
Hence it has been seen that common law has resulted in the judiciary sometimes in striking
arbitrary legislations and sometimes even making new laws. The Government and the
legislators are accountable to judiciary for arbitrary actions or legislations and the judiciary is
empowered to protect the interests of the people by striking the actions or legislations as
unconstitutional and violative of the rights of the people.