LAW AND SOCIAL CHANGE IN INDIA:

A SOCIOLOGICAL PERSPECTIVE

YOGENDRA SINGH

The interaction between law and society can be seen at several levels:
the judicial process and its sociocultural linkages; law as an indicator of
the nature of societal complexity, and its attendant problems of integra
tion; and finally, law as an agent of modernization and social change. A
sociology of law would have to deal with all these levels of interaction
between law and society. In our analysis, however, we shall focus on the
relationship between law and social change and modernization in the con
text of the Indian society. Using a sociological perspective, we shall treat
law in its institutional and historical contexts and analyze its dialectics
with society in its broader social structural setting.

1 The Dialectic of Law and Society

The dialectic of law and society in India has been determined by his
torical experiences during the passage from colonialism to nationalism. In
the course of this passage, the paradigms of both the social and legal systems
have evolved. This process bears an acute imprint of historicity; and yet,
in light of our observations of similar interactions between law and society
in the industrially advanced western countries, some convergence of ex
periences at a universalistic level cannot be denied. Today, the processes
of law and social change in India, while in large measure unique, do
share some commonalities with industrially advanced nations in the crisis
and contradiction of the paradigms of law and society.
The primary components of legal systems and paradigms of moderni
zation in the industrially advanced countries are based on the ideology of
rational utilitarianism. Their Gesellschaft model of society implies move
ment from status to contract; from community to individual, from partici
pation to administration, from guild to state, and from empathy to objec
tivity. It was the product of the laissez-faire ethos of a market-oriented,
non-personalized legal system. Bentham, Weber, and Schumpeter, the
mentors of this "rational legal order" were bridges between the legal sys
tem and the social structure. The crisis of the late sixties and early seven
ties in the industrial societies gave impetus to the reawakening of interest
in the Frankfurt School of sociology, neo-Marxism, and phenomenological
44 Law and Social Change

existentialism. These renewed interests tended to swing the pendulum, in

ideological if not also structural terms, towards the search for alternative
models of both modernization and the legal system. This development is
largely a product of the structural contradictions of the post-industrial
society; it surpasses the ideological confines of the capitalist and socialist
states. Kamenko and Tay have written:1
In the communist world, the tension is between revolutionary
transformation and the desire for social stability, between
mass campaigns and the provision of social and psychological
security for individuals, social spheres and activities, between
Utopian spontaneity and technical-administrative realism. In the
west, the crisis is a crisis in the individualistic view of society, in
a legal model attuned to the need of the individual house or pro
perty holder, the entrepreneur, the settled citizen living on terms
of equality with those around him, secure and confident as an
individual in his bearing vis-a-vis the state and the rest of society.
Against this, the new demands elevate the interests of "require
ments" of the comparatively poor or underprivileged as contrasted
with those who are "at home" with law; they pit the interest of
"society" or of "humanity" against "excessive respect for indivi
dual rights and powers, especially proprietarial rights and powers;
they tend to see men as social products and not as free moral
agents, as people to be cured or helped rather than judged. The
new demands are suspicious of lawyers as a profession in the
common law world because they see them as a privileged caste
with guild traditions and powers; in Continental Europe they see
them as characterless servants of the state.
This new perception of the legal system and its paradigm obviously
inheres the contradictions of an industrial society its increasing unidimen-
sionality, its failure in the liberation of human personality, and its de
humanizing abstractness resulting in the alienation of man. This process
represents a legal order which, in the course of the structural and norma
tive changes that it brought about, also introduced seeds of disenchant
ment and mystification. This challenge necessarily brings sociological
jurisprudence into full play as the social dialectic tends to deeply influen
ce the legal system. It spurs the shift from
private law, concerned with the security of the individual, to
public law, concerned with welfare and social utility. Even in the
heart of the private law, in the law of tort or torts, and in contract,
they have discerned similar developments. In torts there is the
movement from the legal-individualistic principle of fault liability

I. See Eugene Kamenka and Alice Arh-Soon Tay, "Socialism, Anarchism and Law"
in Robert Brown ct c/(eds.), Law and Society : The Crisis in Legal Ideals 55-51 (1978).
 Law and Social Change in India 45

to the social, actuarial cost-benefit analysis that leads to the prin

ciple of loss distribution; in contract, the concept of a bargain
struck between ideally equal and freely contracting parties is
increasingly infringed upon by the courts recognition of social
and economic inequalities and of the one-sided resrtiction of the
power to bargain by the existence of standard contract. 2

In addition to the above, new areas of law in the fields of industry,

environment, consumer protection and social services come into being.
These fields are beyond the nineteenth century conception of the common
law and its judicial processes. The deeper implications of the changes in the
industrial society are responsible for these legal innovations as the response
to the demand for basic alterations of the paradigm of industrial society.
Thus, the crisis of the legal system is also simultaneously a crisis of the
industrial society. The transition from an industrial to a post-industrial
stage of development ushers in social demands on the one hand and stru
ctural changes in the society on the other. These structural changes espe
cially in the society's modes of production and patterns of leisure time,
necessitate the redefinition of the legal order of society at the interperso
nal, intergroup, and intersocietal or international levels. New meanings
of "responsibility," "freedom," "civic culture," and "rationality" emerge.
The structural changes which occur at the post-industrial stage of develop
ment tend to contribute to not only formal "differentiation" in roles
and relationships, but also their "de-differentiation," "personalization,"
and possible revitalization of the principle of "status" in "contract."
These changes may be made possible by the giant leaps in both technology
and culture; they are already evident in the current electronic and com
puter revolutions.

We have thus far discussed the challenges faced by the industrial socie
ties at a higher stage of development. The dialectic of law and social
change in the industrially developed nations has a historically endoge
nous character. The new challenges and contradictions that legal systems
face in these societies is generally different from ones faced by the deve
loping societies. In nations such as India, where a colonial interlude funda
mentally transformed the indigenous evolution of the legal system, the
early legal structures were characterized by the dualism of the indigenous
hierarchical and colonial utilitarian traditions. The universalistic element
in the contradictions of the Indian legal system is confined to the utilitari
an-Benthamite legal administration and philosophy which the British im
posed on India. The British system is itself faced with contradictions in
light of the waning impact of utilitarian liberalism and the increasing
demands of welfarism and socialism.

2. Id. at 48-49.
46 Law and Social Change

The dialectic of the legal system in India, with its entrenched "multi
plex of social structures" on the one hand and its multiplicity of indigen
ous, colonial, and developmental traditions on the other, is tremendo
usly complex. The significant element in the interaction between law and
society in India is the heavy burden of these multiple traditions and the
social concerns and orientations of each. The convergence between the
dialectic of legal systems in the industrialised nation? and the legal system
in India points to the developmental phase of legal system in India fol
lowing independence. The contradictions inherent in the administration
of justice, exemplified by the conflict between abstract individual property
rights, the pursuit of profit, and the protection of the weaker and more
vulnerable groups, represents a crisis in the paradigms of both society
in general and the legal system is specific to India. The situation in the
west is similar, but less complex,

II Law and Society in India

The relationship between law and society in India could generally be
studied in three phases: the traditional or indigenous, the colonial, and the
developmental. The indigenous legal system in India did not have a homo
genous character. It reflected the basic features of the Indian social or
ganisation; it was based on the principle of "inter-structural autonomy".:1
The three basic components of the social system in India, the polity the
system of stratification, and the cultural norms, were relatively autono
mous and unique. Under this system, the king or his administrative
and judicial authorities constituted the top of the hierarchy; they were
centers of redressal or appeal and they intervened in few cases. The custom
prohibited the king from intervening in disputes related to local cus
toms, norms, and practices of castes, subcastes, or tribes. These groups
had their own judicial processes through panchayats, community leader
ship of elders, or the intervention of the chief of the dominant local caste.
The normative structures of the legal system were not totally integrated in
the Dharmashashtras, the oft quoted sources of Hindu legal traditions.
The system represented at best the principle of interpretation at times of
dispute. Depending upon the exigency of circumstances, local priests and
community leaders always had the right to new interpretation of legal
codes. And yet, there was a system in this judicial administration. The
system was based upon the hierarchical order of authorities from the local
caste, community and tribal panchayat, to the council of the dominant or
ruling class, to the court of the king. This linkage of judicial administra
tion was also in consonance with the economic and cultural organization
of the traditional society. The three territorial unitsthe village, the

3. See Yogendra Singh, Modernisation of the Indian Tradition (1973); also see an article
by the sarre author "Legal System, Legitimation and Social Change"' in S.D. Pillay (ed.),
Aspects of Changing India 381-409 (1976).
 Law and Social Change in India 47

small town and the capital citieswere the focal points of social and cul
tural mobility on the one hand and of nodes of commerce, administra
tion, and political intercourse on the other.
In the studies of many scholars who have commented upon the indige
nous legal system in India 4 one finds the focus on the diversity, and not
the integrative principle, of the system. It may well be, as Bernard S.
Cohn suggests, that' in the eighteenth century, Indian social relations ope
rated in a "multiplex" manner, "a relationship in which a person tends
to occupy the same position relative to the same set of other persons in
all networks of purposive tieseconomic, political, procreative, reli
gious, and educational." 5 If, however, one considers the unit of
interaction as caste or subcaste the fluctuations of fortunes within each
such unit by individual families would always cut across the matrix of
multiplex relationships. This is the phenomenon which still remains in
India. The important feature in the indigenous legal system was, there
fore, its sub-systemic autonomy. Despite the ups and downs in the polity
in traditional India, the highly enduring and innovative sub-systemic
autonomy persists.
The main attributes of this legal system and its "judicial processes"
were: large-scale participation, paternalism, flexibility, and innovative
emphasis of compromise and hierarchy. Because community living in the
biradari or kinship group was the essential social matrix within which
justice was sought, the resultant legal process was oriented more to "ad
justment" than "judgement." This judicial process was as informal as it
was expensive. It acted in harmony with the cultural ethos of hierarchy,
continuity, and community ties. The role of dominant castes, families and
kinship groups did occasionally vitiate the process of justice; this, how
ever, occurred more frequently in the settlement of property and heredity
disputes. Greater orthodoxy in the commitment to norms was observed in
the larger towns where the mahajana supervised the justice of contractual
obligations, trade and commerce.
The British who introduced the colonial legal system could never
have a full appreciation of the traditional Indian legal system and its
judicial process. It could not be understood in dissonance with the
traditional Indian polity, economy and social structure. Their colonial
interests were basically at variance with these institutions and their link
ages. They overemphasized the elements of discontinuity and normative
multiplicity because these elements worked well with the objectives of

4. See B.S. Cohn, "From Indian Status to British Contract" Jour. Eco. Hist. 21-613-18
(196!); "Anthropological Notes on Dispertes and Law in India" Am. Anthropologist
Vol. 67, no. 6 (1965); Marc Galanter, "The Aborted Restoration of Indigenous Law in
India" Comparative Studies in Society and History, vol. 14, no. 1 (1972); id., "The Displace
ment of Traditional Law in Modern India" Journal of Social issues, vol. 24, no. 4 (1968);
P.N. Kane, Hindu Customs and Modern Law (1950).
5. B.S. Cohn. "From Indian Status to British Contract" id. at 617.
 48 Law and Social Change

colonial appropriation and profit. The interests of both the British govern
ment and the East India Company coincided in these objectives. The
need for '-order" nevertheless led to the imposition of a new legal system
which the British administrators could consider was an improvisation of the
Benthamite utilitarian tradition. There was, for a while, a debate between
the modes presented by Cornwallis and Munro. Cornwallis opted for an
embodiment of the commands of the government in formal legislative acts.
He advocated administration by independent judicial administration in
order to both secure private property and control the abuse of executive
power. Munro, on the other hand, based his model on "paternalistic ideo
logy" and assumed the role of personal authority to reign supreme in Indian
culture. Hence, his emphasis was on the evolution of a judicial system
anchored in village panchayats, local customary tribunals of elders, and
native judges. There was to be no complete separation between the judicial
and executive functions. Though this debate continued for some time, and
though Munro experimented with some elements of his system in Madras,
the Cornwallis model of a legal system and judicial administration
patterned after the British constitution and common law eventually
triumphed."
The judicial administration which Cornwallis imparted in India had
come to stay. Its main features include : the establishment of a British-
controlled court in every district to administer law and order, the adminis
tration of personal law in accordance with the customs of each religious
group, and the settlement of revenue matters according to the principles
of the pre-existing Muslim law of usage. In addition, judicial procedure
was to be modelled after the British practice, judges of the district court
were to be either British or British-covenanted civil servants (Indians could
be recruited at lower levels), and the district courts were to be assisted in
personal matters by Hindu and Muslim priests. A legal profession was
to be established; land revenue was to be permanently fixed; individual
or corporate groups were to be recognized as owners of land for revenue
payment; revenue and judicial functions of the administration were to be
separated; and ownership rights were to be settled in district, civil, and
appeals courts. 7
Codification accompanied this structure of legal administration.
Macauley, president of the first Law Commission set up in 1834, produced
the draft of the Indian Penal Code which became law in i860. Between
1953 and 1870, the Law Commission contributed to the civil and criminal
Codes of Procedure which were enacted in 1859 and 1861, respectively.
At about the same time, India was given a uniform judicial structure as a
result of the unification of the Supreme and Sadar Courts into High Courts.
The Law Commission's efforts also led to the enactment of the Succession
Act (1856), the Limitations Act (1871), the Evidence Act (1882) and the

6. See Eric Stokes, The English Utilitarians and India (1950).

7. See B.S. Oohn, "From Indian Status to British Contract" supra note 4 at 614.
 Law and Social Change in India 49

Contract Act (1882). Under the direction of the government of India,

there came a Specific Relief Act (1877), the Negotiable Instruments Act
(1881), the Trust Act (1882), the Transfer of Property Act (1882). and the
Easement Act (1882).8
This spurt of legislation implied the emergence of a radically different
legal order and impj,nged directly and deeply upon the normative and
cultural system of the Indian society. It was not only a measure of for-
malization, but also a mode of modernization through westernization.
The significance of the imposition of the colonial legal system in India
was marked. It created a new class of professional legal experts, lawyers,
judges, court administrators, and bureaucrats. These are the basic
components of a civic society. The introduction of the colonial legal
system led to the arousal of aspirations and demands for positive rights
by the deprived classes and communities. In the course of time, it led
educated classes to the creation of the substructure of a new middle class
of capitalists, entrepreneurs, and civil servants. These and other sorts of
professionals led the nations's movement toward independence. It is this
movement which shaped the post-independence Indian Constitution and
provided the legal boundaries for social change which exist today. The
colonial process of modernization brought forth the substructural and
subcultural character of social change which has remained an important
feature of Indian administration.
The interstructural autonomy mentioned above enabled the new
middle classes in the legal professions to emerge from the specific castes,
communities and groups which already enjoyed a privileged position in
the society. This made it possible to introduce social and cultural innova
tion without coming into conflict with the core of the structural and
cultural foundations of the societyits caste structure and cultural ethos.
The new forces of change thus could be absorbed and filtered through the
middle class to the rest of society in gradual stages. The thirty-year rise
of the nationalist movement in India served to forge these forces and
aspirations for change into a national ideology. The contradictions now
faced by the independent Indian state with regard to its legal framework
of social change are anchored in the levels of incongruities between its
social and cultural ideology and the structure of its legal profession. A
social ideology which is based on secular, civic and egalitarian features
naturally comes into conflict with a legal profession which is based on
individual rights and class structure and is, at least in the abstract,
unconcerned with social responsibility.
Thus, the colonial legal system introduced new challenges and possibi
lities for social change in India. It did, however, also create legal institu
tions which were, in terms of pedagogy and procedure, alien to the
general populations's experience and reach. The new system did away
8. Yogendra Singh, supra note 3 at 98.
50 Law and Social Change

with the traditional participant mode of justice which had operated via
the courts of the panchayats, chiefs, and kings. It introduced systematic
codification of laws which were rooted in alien cultural and philosophical
soil. These new codes replaced the traditional customs and conventions
of the Dharmashashtras, Koran, and Hadith. It also rendered justice remote
and expensive and clouded its functioning in an atmosphere of mystifica
tion and suspicion. The result was the emergence of two cultures in the
legal profession as it is organized in India today; these cultures are referred
to by Marc Gallanter and B.S. Cohn as "lawyer's law" and "local law."
The cultural hiatus that this dualism created in the realm of the law and
the legal profession is not specific to India alone, but is a general problem
which occurs in the modernization of a traditional society which is charac
terized by a high level of historical and cultural depth. The crisis in
cultural terms is a crisis of reconciliation between traditionalization and
modernization.
Law and Society after Independence
The national movement in India which culminated in the independence
of the country failed to create an indigenous legal system. Mathatma Gandhi
did voice his suspicion of the British sponsored courts and the lawyers in
his many exhortations of civil disobedience movements, but when India
gained her freedom and the framing of the Constitution began, the
Gandhian emphasis on an indigenous legal system and judicial administ
ration was not accepted by most members of the Constitutional Assembly.
The Constitution as it emerged contained elements of the Gandhian ideo
logy, including village panchayats and democratic decentralization, in the
directive principles of the new state policy. As late as the establishment
of the Ashok Mehta Committee on panchayati raj in the late seventies, the
Gandhian ideologues who advocated the complete decentralization and
autonomy of the village panchayat system did not find support. While
evaluating the need for indigenization of the legal system, the Law
Commission of 1958 did not see any major contradictions between the
present legal system and the "genius" of the people. In the opinion of the
Law Commission, the Indian legal system had, in the course of its func
tioning, undergone modifications adequate to render the imprint of the
alien system more suitable to modern Indian conditions. Moreover, they
agreed that, had the indigenous system been allowed to evolve
independent of colonial intervention, it would have grown along a path
similar to that of the present legal system. Such ideas lend perspective
to the dilemma of the Indian middle class with regard to the challenges of
modern national building on the one hand and the rhetoric of indigeniz
ation on the other. Studies have shown that the dualism of the two
traditions has been functionally well adapted in the Indian legal system.0
9. See R.S. Khane, "Indigenous Culture and Lawyers' Law in India", Comparative
Study in Society and History, vol. 14, no. 1 (1972). Sec also Marc Galanter "The Aborted
Restoration of Indigenous Law in India", supra note 4
 Law and Social Change in India 51

One important innovation since independence is the introduction of

the panchayati raj system in villages. Together with the community
development activities, the panchayati raj also incorporated the system of
nyaya panchayats for lower level judicial administration. Two national
committees investigated the administrative and functional nature of these
systems and decided t accord these panchayats the judicial power relevant
to the day-to-day administration of justice. This decision was based
primarily on the ideology of the village community, the role of participa
tion, and the relatively informal judicial procedures which occurred
without the intervention of lawyers. The introduction of these new systems
rendered some levels of justice more freely available to rural folk at low
cost. They became more free from-the legal substructure of abstract rules
and impersonal procedures. Subsequent evaluative studies carried out by
state committees and research teams have, however, found that these
nyaya panchayats are largely nonfunctioning and are, for the most part,
ridden with factious interests. Due to the system of elections which is
used to select panchas or court members, the nyaya panchayats have
become highly policiticized. The states of Maharashtra and Rajasthan,
whose committees reviewed the functioning of these village courts, have
received recommendations for disbanding them. This coincides with the
Law Commission's insistence that judicial and electoral processes be kept
separate. Findings such as these again enmesh state and rural politics
and expose the structural contradictions and the alienation of the masses
which result. As Upendra Baxi rightly suggests, this institution of other
wise great significance has not made an impact. He correctly attributes
this to the ambiguity of ideology and the marginality of the institutional
linkages which act as an additional constraint in their functioning.10

IV Law and Social Change in India

The ideology of social change which has been adopted by India after
independence is enshrined in the Constitution. It incorporates the elements
of both the liberal democratic values and the Gandhian values of social
change. This can be discerned in the dualism found in the fundamental
rights and directive principles of the state policy. The former is rational,
liberal and individualistic in ethos; the latter asserts the principles of com
munal welfare, decentralisation of power, amelioration of the condition of
the weak, and commitment to the abolition of the "unhealthy" practices
of the Gandhian tradition (i.e. liquor consumption). Whereas the Consti
tution recognised the individual as the unit for interaction in matters con
cerning legal rights, voting, state administration, it also recognised the
legitimacy of specific castes and communities for favoured treatment. For
example, such groups include schedules castes, schedules tribes, religious
minorities, and backward classes. The instrument of social change in this
10. See Upendra Baxi, The Crisis of the Indian Legal System 353-57 (1982).
 52 Law and Social Change

model is social legislation. Social justice, equality, secularism, and

democracy are its fundamental normative goals.
The Constitution thus brings out two apparently conflicting principles;
it presents universalism and particularism in the same ideological package
of social change. Is this irrational? Is this a product of ad hoc-ism or a
quirk of history or a colonial legacy? Or, is this an eclectic effort to
synthesize modern with traditional values in the ideology of change?
Sociologically, the answer to these questions lies in the fundamental com
mitment that the nation has made through the Constitution to introduce
changes in a peaceful manner (the Gandhian or later the Congress
ideology) so that India could become a modern, secular, democratic and
socialist state. Egalitarianism and freedom are difficult values to reconcile
in the statecraft of a nascent democracy following its liberation from colo
nial exploitation. Conditions arise which logically call for judicious and
selective use of legislation for social changes commensurate with the
objectives of the Constitution.
The civic model of change, as it derived from the Constitution, could
not logically recognize primordiality, caste, religion, and ethnicity. It could
not leave the most exploited, weak and vulnerable groups in the society at
the mercy of the market forces of social change which always structurally
favour the right and the strong. Hence, reservations, protective discrimi
nation, and special favour to religious minorities and weaker groups
emerged. With the aid of legislative reforms, the strategy of change
implicit in this model relies on the application of the pressure of social
change through structural changes in the social, economic, and cultural
systems. For this purpose, the Constitution enjoins upon the executive,
legislative, and judiciary special responsibilities. Justice Krishna Iyer has
very aptly analyzed this relationship:11
A collective consciousness which makes India great is that
collective consciousness that makes every Indian feel elevated.
Now, so I plead that the Constitution's code, its fighting creed, as
has been put in the title of this talk, is not elitist. It is
democratic. It is proletarian. It is people-oriented. Now,
this people orientation must be manifested in the operation of the
three instrumentalities which I called the Constitutional troika.
The executive, when it operates, must function as if it has raised
itself to the consciousness of the Constitution. In that event there
would be no unimplemented laws which were enacted long ago.
Likewise our legislature has to pass many laws. Mahatma Gandhi,
in a publication "The Harijan" has said, "I must visualise
Independent India to be again engaged only in making legislation
after legislation to save the poor." There is so much to be done
11. Krishna Iyer, "The Indian Constitution : Our Founding Deed and Our Fighting
CreedSome Thoughts on Their Future" First S.K. Sinha Memorial Lecturer (1982).
 Law and Social Change in India 53

to save the poor. And all this must be by legislation because

the executive has the authority only when the legislature
passes a law. So, legislation must be made. Continuous stream
of legislation, all welfare oriented legislation. And then we come
to the interpretation of these laws by the judiciary. No country can
have civilisation safe if it does not have a competent and indepen
dent judiciary. I emphasise competent judiciary as an important
ingredient. An incompetent judiciary, a fraudulent judiciary, an
absolutist j udiciary, a judiciary given to judicial excesses, can be as
dangerous as an executive given to excess. An absolutist executive,
and absolutist judiciary and an absolutist parliament cannot be per-
sona grata in a democracy. What we want is a judiciary which is
accountable, a judiciary which is responsible, and with these
parameters, a judiciary which is absolutely free, fearless and
independent. If you seek to pressurise the judiciary, then the poor
will suffer. Because who has the ability to pressurise? It is the
rich man who has got the ability to pressurise.
The above interpretation of the intent of the Constitution is the
most emphatic. The Marxist interpretation, in comparison, traits the
Constitution as a bourgeois document intended to perpetuate the capita
list state. The liberal interpretation claims that the Constitution is elitist
and charges it with neglect of the legalitarian pursuits that pervade its
corpus, from the preamble through the directive principles. The question
of interpretation apart, there is a logical principle and strategy behind the
Constitution. One jurist has termed it "civic revolution." This differs
from socialist revolution which is based on the open legitimacy of class
struggle and its attendant socio-economic and political implications. India
has deliberately chosen a path of development and social change which
promotes social mobility, opportunity, and well being of the deprived
sections of society in a nation which is no doubt dominated by the rich
and the elite. It does, however, employ a method of legal consensus
which is based on a reconciliation model. In such a model, the responsibi
lity of the dominant classes becomes acute because reconciliation implies,
almost in a Gandhian style, the voluntary association of the poor, the
weak and the deprived, and the underprivileged. Its logical compulsion
is more pragmatic than ethical; the privileged should know that such
accommodation is also in their self-interest. In Marxist terminology, it is
the tactics of the intelligent national bourgeiosie who, forewarned of
revolutionary potential, attempts to contain it. On the contrary, the
specificities of the Indian social structure and its historicity would show
imperfections both logical and historical in the nature of alternative paths
of development and modernization.
Indeed, the contradictions of the relationship between law and social
change in India rest not so much in the inadequacy of the models as in
the processes of implementation and execution of these models as such.
54 Law and Social Change

During the three and a half decades of functioning as a democratic nation

with planned development, India has succeeded on many frontiers of social
change. The landed aristocracy stands abolished as a class; the power
structure in the villages has passed almost completely from the traditional
rural elites to a new rural middle class. A new class structure has emerged
in the villages; a peasant middle class, which is aggressively entrepreneu
rial, has quickly adopted scientific methods and techniques of agriculture
and is the leader of the green revolution. The monopoly in higher educa
tion, previously a privilege of the upper castes and classes, has now slowly
started percolating to the middle classes in the villages. These changes
are the results of legislation and other reform measures. The reservations
which the Constitution accorded in the legislatures, government services,
and schools have now successfully spawned a new generation of middle
class, educated youths. New voices have been added to the demands for
change and have contributed to the increasing mobilisation of elements of
the social structure.
The demonstration effect has been rendered so acute that in some
pockets of the country, it has led to retroactive protests. In the field of
land reform legislation, the ceiling level on land holdings which was
enforced during the fifties and sixties has been cut in half in most Indian
states. There is an indicator of the consciousness of reconciliation. The
impact of land reforms, though uneven from state to state, has spurred
agricultural growth and green revolution in several parts of India. This
in turn has created a new phenomenon of labour migrancy from poorer
states such as Bihar and eastern Uttar Pradesh to states such as Haryana
and Punjab. It has had far reaching social consequences in its liberation
of the working classes in their home states from the clutches of the domi
nant classes or castes. It has provided new capital and savings for invest
ment in land, houses, and cattle and it has opened up new possibilities for
social mobilization and the independent political functioning of the work
ing classes as a group. This has been especially true of low castes such as
the Harijans and Girijans. The recent increase in intercaste tensions in
rural areas are indeed a result of the trends of mobility in the rural social
arena.
Another important area where "civic revolution" seems to have made
a successful impact in India is in area of electoral behaviour. Electoral
awareness has increased throughout the country as the election procedure
has spread into the village panchayats, the nyaya panchayats, the assembly,
and the parliamentary levels. Direct elections now dominate the selection
process. In addition there are now electoral procedures for several bodies
of voluntary associations and cooperatives. The system of electoral
politics and its concommittant consciousness have created a new sense of
power and self-esteem in various segments of rural and urban population.
No doubt it has also activated factional politics and kindled a narrow
breed of "caste-ism" and ethnicity. Sometimes these identities emerge into
 Law and Social Change in India 55
communal principles in voting. If, however, we use voter participation
as a measure, rural and urban participation in India is significant and
comparable to participation in many developed democracies. This new
electoral politics and participation rate has indirectly reinforced a vital
component of the civic culture, the legal consciousness.
Another positive social change which has taken place following
independence is in thi field of industrialisation and growth of the entre
preneurial cksses. The commanding height of economic power continues
to invest in public sector industries. However, during the past three
decades, a sizable middle class of small entrepreneurs, commercial classes,
and professional groups has emerged in the urban centres. Together with
the rural middle classes, these groups comprise roughly one-fifth of the
population. The rise of this middle class is a stabilising and critical
element in India's process of social change today. This class adds stability
to the system, contributes to economic growth and mobility, offers employ
ment opportunities, and makes use of public and private resources for
development. On the other hand, this class suffers from the cultural
gauchery of the new rich and is less scrupulous about conformity to legal
norms and established middle class values. The middle class's demonstra
tion effect of the social structure is both acute and deviant. Its approach
to the weaker sections is more cynical and indifferent than cosmopolitan; it
has, therefore, increasingly tended to flout the norms of "reconciliation"
and "consensus." This is indicative of what is known as the "under-
development of development" process in India.
The positive directions of social changes have also taken place in the
fields of science, technology and manpower. The population of scientific
manpower in India is said to be the third largest in the world. Managerial
skills and innovation, the faith in science and scientific ways, has become
deeply rooted in India, even down to the level of remote villages. The
traditional thought patterns have not, however, declined. There is a
precarious and often dialectical coexistence of the two in Indian society.
The same holds for the nature of the legal profession. Related studies by
sociologists demonstrate the persistence of a large body of traditional and
non-rational practices both in the structure and the functioning of the law
profession and its organisation.12 The problem now confronted by the
legal system is the product of the process of underdevlopment of certain
sections of the society in the wake of overall development and social
change.
V Contradictious of Social Change and the Legal System
The positive aspects of social change in India, as discussed
above, have generated a substantial number of contradictions in the social
12. See J.S. Gandhi, Lawyers and Torts : A Study of the Sociology of the Legal Pro-
fession (1982); T.K. Ojmmen, "The Legal Profession in India: Some Sociological Pers
pectives", Indian Bar Review, vol. X, no. 1 (1983).
56 Law and Social Change

system. The rise of the middle class in villages and cities has led to
hostile attitudes toward the weaker sections and the poor. In villages the
tensions between the Harijans and the Hindu castes have increased and
necessitated the passage of the Civil Rights and Disabilities Act. The Act
makes derogatory reference to the scheduled caste status as a cognizable
offence. The exploitation of the labourers by rich peasants held under
bondage through the extension of loans has been h%ld legally void, but
there is evidence of its perpetuation. Minimum wages for labourers in the
unorganised agricultural sector stand as one piece of evidence and the lack
of uniformity in the introduction of small scale enterprises and shops is
another. Similarly, the legal norms with respect to the vulnerable sections
of societythe children, the prisoners, the women, the inmates, the
prostitutes, the slum and pavement dwellersdo not exist in the law; or,
their existence is rendered impossible by the resourceful, powerful, and
influential vested interests in society.
The development aspects of social change in India have given
birth to a new awakening among the scheduled castes, scheduled
tribes, the poor, and the working classes. Evaluation studies show that
social and economic reform measures undertaken by the state for the
benefit of these groups are not successful in reaching them. In areas
where these groups are sizable or organised, these changes often
culminate in protest movements. These movements are effective
recourse for the redressal of grievances, but they are isolated and
scattered events. Only voluntary social workers can come to the aid
of these groups. Unfortunately, the intervention of social workers is
inadequate and rare.
In the wake of increasing social awareness of the asymmetry of the
development process, the gaps between the rich and the poor, the agricul
tural labourers and the rich peasants, the basic contradiction facing the
Indian legal system is met in the efforts to make the instruments of legal
protection, legal bargaining, and legal redressal available to all. Greater
emphasis has been given to this field over the course of the past decade.
A movement for "legal aid" for the poor and destitute has begun. A
government appointed committee has made a report on the implications
and modalities of the legal aid movement. There has, in addition, been
a significant response from the bar and from the bench. The Supreme
Court of India has started allowing third party petitions by voluntary
social workers and associations on matters of social concern. It has
instituted investigations into several matters on the basis of legal aid rights
to all citizens. Until a few years ago, this would not have been possible.
Nandita Haksar writes:13
Now a public spirited citizen, concerned lawyer, or journalist, or a
democratic rights organisation can move the court on behalf of an
i 3. Seo Hindustan Tiimx, (New Delhi), 22 May, 19S3,
 Law and Social Change in India 57

oppressed or exploited person or group of persons. The court will

recognise their locus standi (legal standing). This right was first
recognised in the famous Transfer of Judges case and later elaborated
in the Asiad case. This was in conformity with the trend in other
parts of the world.
Supreme CourJ judgements are binding for all courts of the land;
therefore, the initiative of the court with regard to its decision to allow
third parties to be represented in matters of social justice and social con
cern has tended to set in motion a new democratisation process in India.
It is reported that hundreds of requests for legal aid are now pouring into
the courts. These letters are addressed directly to the judges of the
Supreme Court. The cases of the bonded workers in Haryana, of the
prisoners (under trials) in Bihar, of the inmates of the women's rescue
home in Delhi, of the children in juvenile institutions, and of the torture of
ordinary citizens by the Army in Nagaland, just to name a few, demons
trate the wide spectrum of the new movement for legal aid. A new area
of what is called "public interest litigation" has come into being. It is
being run by public spirited professors, social workers, journalists and
politicians. Several organisations which are working for the protection of
democratic rights in India have been established. Considering the vastness
of the country and magnitude of the population in need of such legal pro
tection, this new development has touched only the fringe of the problem.
The movement has, however, by selectively addressing the most critical
issues of legal aid, already made a very significant impact.
The impediments of this movement toward social change may be
observed in the indifference, or even hostility, of the executive and the
political functionaries. There are many feudal elements in the Indian
political and civil service system which make it necessary that some aspect
of the legal aid movement be institutionalised by the government. As
mentioned earlier the democratic development in India is bound to create
an upsurge in the rural and urban poor, and their protest movements are
bound to grow.14 The "civic revolution" as a model of social transfor
mation would make it a logical necessity that law as an instrument of
social change is held under constant review. More importantly the
judicial processes and legal administration, and the role of the executive
in the proper implementation of the legal norms, should be rendered
more effective. Finally, the efforts of the Indian government and the
efforts of the public organisations and enterprises working to advance
the movement of democratic law and social change must be linked.

14. A.R.. Desai, "Sociology of the Under-Privileged," Inaugural Address, 5th Sociolo
gical Conference. University of Kanpur (1983).