By Nakshatra Gujrati
The author is a first-year student at National Law University Odisha and is the founder of LAWOGS.
Sociology, as we know the Greek root “logy” means to study (of) and Socio can be colloquially defined as society. So Sociology may be defined as the study of society. Society is limited to a geographic boundary. Navratri is a pious festival of India, people enjoy it. But in the USA people might not know about this festival.
In India, since the society flourished in Vedic times it was dynamic. The ancient lawgivers tried to form law as per the requirements and changing needs of our society. Law is a tool that regulates our social behavior by allowing and prohibiting certain acts.
Is it always true that laws regulate society?
Let’s talk about social attitudes and laws. It’s true that society shapes its people as well as their laws, but it is sometimes true that laws change or let me present it more accurately, try to change the society. A reputed news channel called ‘The Quint’ published a video called ‘Rape is consensual: Inside Haryana’s Rape Culture’. While Sikkim a northeastern state of India has the lowest number of rapes and is a safe place for women to work without any restrictions. It must be noted that IPC is enforceable within the territory of India and both states are a part of Indian territory. So plausibly it isn’t the laws that are deterring these rape statistics. In the video, one can see a 14-year-old child saying that girls are themselves responsible for rapes. The prevalent attitude of society plays a vital role & it isn’t always the case when law shapes the attitude of society as argued by many intellectuals was my argument which I wanted to establish through this analogy and statistics.
So how can we say that law regulates or changes the society?
“In December 1950, India ( I am laying emphasis on the year 1950 because much time was not elapsed after India got its Independence and its Constitution.) A person named Yasin, a young vegetable vendor gets a new set of bylaws licensing the sale of vegetables in the town area. The license was issued to a merchant who had a monopoly over the vegetable trade and he forced Yasin and other small merchants to sell their goods to him at a cheap price. He filed a petition under Article 32 of the newly enacted constitution for writ of mandamus to enable the respective authorities to perform their legal duties.”
One can observe that India was under the colonial rule where it was difficult for people to enforce their rights within 2 years of Independence appealed to the apex court of the land to get their rights enacted.
This case example substantiates my claim that sometimes law changes the attitude of society.
How is social awareness good for law?
Bastar, in the southern part of Chattisgarh infamous for Naxalites, is although historically known for rich forests and biodiversity. To tackle the problem of Naxalism, the state govt of Chattisgarh formed a force called Salwa Judum which means purification hunt. This Salwa Judum had children from Adivasi and Dalit groups who were provided with weapons to fight Naxalites. To just give them legal sanction some of them were included in SPO, Special police officers team. This lead to an informal civil war between Naxalites and civilians.
Nandini Sundar a professor of sociology at Delhi School of Economics filed a PIL in the supreme court to protect the rights of civilians who were left to die in wars which the state govt sponsored against Naxalites. The ruling of the court isn’t much of our concern in this scenario but the valor and social knowledge led Ms. Nadini Sundar to fight for the people of Chattisgarh.
This social awareness and study of society develop a special perspective that helps even common people to lead a fight for society. So indeed it is an important skill that every law student must have, and the way to master this skill is to learn sociology.
We know that society is living so is law?
Let’s take an example of live-in relationship, a western concept, and an alternative to live together without marriage. In India, although it isn’t illegal the social acceptance isn’t very optimistic. In a recent case, Gulzar and Guruwinder started to live together without marriage and they started getting death threats from their families. They approached the Punjab High court which passed a judgment that they aren’t entitled to protection, which was later dubbed as a regressive approach. When they appealed to apex court they were granted protection under article 21. The concept of live in relationships in India started with Lata Singh v State of Uttar Pradesh (2006), now it is very common in places like Delhi, Mumbai, and Banglore. So one can see that society tries to keep up with the new terms which make it living and due to it law is amended to suit these new changes. So in some way, we can say that law is living. Another good example is, amendment in the law of inheritance to give some rights to women.
Did society ever force law to change its course?
Just after the independence, we drafted our constitution which contained a fundamental right to property. Much time didn’t elapse and it was struck away from the constitution and the justification was that the state needs land to distribute it in the population and set up different things on it for the welfare of people. Fundamental rights are something that is promised and are directly enforced by the state, but when the right to property was abrogated it rose a contention that are we really be getting those rights or slowly all of them would be dissolved. In a leading case SC ruled that it is a part of basic structure doctrine. At that time one of the judges had an opinion contrary to what the ruling was. But soon after, in the next case, he himself accepted that yes fundamental rights are the soul of the Indian constitution, and the soul can’t be done away with the body.
Just after independence state was termed as Licence Raj, where there was a requirement of medical license for consumption of alcohol. In a case, a person drove home from his office and was caught by a police officer for rash driving. The officer sniffed the person’s mouth and surmised he consumed alcohol because of a pungent smell and the case went to court. This was the beginning of a crusade against the state to liberalise individual choices. So one can infer from these examples that yes society forces law to change course when they go against the social attitudes prevailing at those times.
Thomas Hobbes said humans are warlike and the state needs to interfere and control them. Law is one such tool, but we have observed that it isn’t always the case that society is always obedient towards each and every law. Laws are drafted and when they are drafted they represent an era when the social attitudes might have been different. In ancient India, Dharmasastras dealt with the Varna system and the ancient courts took cognizance of it. Gradually in the Muslim period, this system was abolished because the society changed and so the social acceptance of the practice. In the British era, the practice of the Sati system was abolished, the system of the writ of mandamus was introduced by leading British lawyers cum sociologists who vouched for equality. Being a lawyer isn’t all about the rule book it is something more than that dubbed as legal reasoning. Lawyers must be aware of the sociological perspective to make their arguments persuasive; courts need to understand the budding needs of changing society. Recently a Madras HC said he will take a specialized course on LGBTQ to decide his future course of action regarding those cases.
When we see something we see it as moral or immoral, but a lawyer can’t make a penny with this perspective, in sociology nothing is good or bad. “A criminal isn’t born criminal, he is created by the society.” Sociology gives us an alternative perspective to ponder upon. Criminal law follows the principle of ‘actus facit reum nisi mens sit rhea’ means forbidden act and guilty intention. But when we deal with complexity in finding the intention of a person we need to see his social upbringing, what actually made him do a perverted act. This is how sociology helps the law.
Learning sociology as a student is a boon because it will provide much time to devote and develop a sociological perspective that will ultimately help us in the field of law. As mentioned earlier society is dynamic and to meet the needs, the law needs to be dynamic. This dynamism can be achieved with the help of sociology.