Law: An Instrument of Social Transformation
Author: Kumari Bhargavi Symbiosis Law School, Pune
The term “Law” in its most general sense and common parlance denotes different kinds of rules and principles that regulate human conduct within a politically organized society. Society is a substantial heterogenous setup that consists of people belonging to different caste, creeds, gender, and background, and to maintain stability among them, a law was required. Indian society has encountered a lot of dominance that is still prevailing but to a lesser degree as the society consists of many people, and some of them are in the position to dominate the weaker ones in terms of position, money, and status[i]. It is also subject to many felonious issues like poverty, rape, Triple Talak as in Islamic religion, child labor, discrimination based on caste and creed, child marriage, corruption, and many more to the list. Law acts as a key for society to eliminate all forms of hindrance. Society was subject to continuity and changes because of the changing needs and acceptance of the people. For instance, the practice of Sati being inhuman nature was prohibited, therefore the framers of Constitution with the thought that post-independence Indians should not be subjected to inhuman practices, introduced laws within the society to curb all the evils. Society wasn’t modified in any particular phase, but it continued to assimilate new features in every phase, which in turn provided it with nonidentical characteristics in each accomplishing phase.
SOCIAL CHANGES THROUGH LAWS IN INDIA
‘Dowry’ refers to the act of demanding movable or immovable valuable properties by the groom’s family from the bride’s family before marriage[ii]. The religious custom of practicing dowry whenever a female member of the family was married became one of the main causes of female feticides and bride burning, due to the high demand for cash and wealthy objects. There was grave injustice occurring to the female sections in the name of traditional practices. But later on, with the increasing crimes rates of bride burning and violence for the demand or dowry after a female got married, the Dowry Prohibition Act, 1961, was enforced which criminalized the act of demanding and giving dowry[iii]. Dowry death has been criminalized under Section 304B of the Indian Penal Code, 1860[iv]. Further, Section 498A of the IPC, which defines ‘cruelty’, states that coercing a bride to fulfill the unlawful demands of the groom’s family will amount to punishment[v].
Indian Daughters and their property rights
The society as always considered women not fit to enjoy equals rights as their male counterparts. The social customs and norms initially prevented the daughters within the Indian society to be considered as the co-parceners of their ancestral property under Section 6 of the Hindu Succession Act, 1956, because it was believed that females upon getting married are bound to give up their parental household and settle in their marital house, therefore it was felt ancestral property should not be divided among the females of the family. Under the Survivorship rule of this Act only males were considered as the coparceners up to three generations. The Hindu Succession Act (Amendment) 2005, was enacted from 9th September, 2005 making the females also qualify for co-parcener rights by birth according to the method of succession bifurcated into testamentary and intestate succession[vi]. The Daughter’s Right to Property applies to Hindus, Buddhists, Jains, and Sikhs.
Decriminalization of Article 377 and Legal Protection for the LGBTQ+
According to the Natural Law Philosophy, people consider sexual relationships only between a male and a female to be moral, but in our society, there also exists a community called the LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer and, others) whose identities are different for the stereotypical gender norms. The Indian Constitution provides equality before law through Article 14 to all the citizens within the territory of India and Article 377 emerged as violation of the former as it did not specify “carnal intercourse against the order of nature”[vii] as there was no proper differentia between natural and unnatural consensual sex. Article 377 also violated Article 15 and Article 21, and this created grounds for gender-based differentiation. The cases Navtej Singh Johar v. the Union of India 2018[viii], decriminalized Article 377 on the grounds that it was vague. The government in an attempt to provide equality and protection to the transgenders in the matter of employment, education and health services enacted the Transgender Person (Protection of Right) Act, 2019[ix]. Presently, they are provided with equal fundamental rights under Article 14,15,16 and 21 of the Indian Constitution.
Abolition of Caste System
The institution of the caste system known as the “Varna System” started during the Vedic Period, where people were divided into four broad categories based on their occupation, but later on, this caste system became a hereditary notion and gave birth to the concept of “Dalits” or the untouchables. The lower castes were treated inhumanly and were discriminated in all the political, economic, social and, educational aspects of the society. Further during the colonial administrations, laws were outside the ambit of social jurisprudence as there were no stringent laws to protect the interest of the people belonging to the scheduled castes and scheduled tribes as they were subjected to discrimination. To eradicate this felony from society, Article 15 was inculcated in the constitution of India, and for the abolition of untouchability Article 17 was introduced.
Criminalization of Rapes and Sexual Assault
Rape a heinous crime and a disgrace to humanity is one of the major issues and a threat to the society, has been criminalized under Section 375 of the IPC. Moreover, for the protection of children against sexual abuse the POSCO Act 2012, (Protection of Children from Sexual Offences) was introduced. Discrimination against female in the society is a rife phenomenon. The workplaces were contemplated to be exclusively reserved for males thereby leading to active violation of the female rights as provided by the Indian Constitution under Article 14, 15 and 16 which was followed by a series of dreadful incidents where females were physically and verbally abused. The heinous incident where Bhanwari Devi, a government employee who ran campaign against dowry and child marriage was raped by a group of men, paved a way to the formation of ‘Vishaka Guidelines’ which followed the case Vishaka and Ors .V. the State of Rajasthan[x], as the Rajasthan High Court convicted the five rapist with a degree of punishment much lesser than that of rape, following which a PIL was filed in the Supreme Court which sought to develope a set of guidelines for females at workplace which was instituted in the year 1997, by the Supreme Court of India. The transformation that was brought about within the society post this case highlights the power that law holds to change the societal norms and promote social transformation. The Vishaka Guidelines defined sexual harassment and aimed at provided a safer working environment for women. This was later superseded by the Sexual Harassment of women at the workplace (prevention, prohibition and redressal) Act, 2013 that diversified the definition of sexual harassment[xi].
ANALYSIS OF ISSUES FACED WHILE BRINGING ABOUT SOCIAL TRANSFORMATION
In a patriarchal society, women have always objectified and treated as second-class citizens. The practice of dowry in India engenders substantial violence towards women. Presently taking dowry is criminalized, still many families demand dowry during marriage without which the females aren’t married. There have been many instances where parent married off their daughter on the promise of giving dowry, later refusal of which leads to the dowry death of young brides. Though we have progressed in terms of technology yet we are lagging behind in terms of gender equality as women are looked down upon and have to go through several tortures. The ground reality in few areas are different from the legality since there have been many incidents where females are left unmarried or after marriage had been left at their parental home for not giving enough dowry, therefore in rural India even today families give dowry upon the marriages of their daughter fearing that failing which their daughter will be left unmarried. The major root causes of giving dowry to the groom families is illiteracy since many families believe that instead of investing finance upon the education of their daughters, they should better get them married into reputed families moreover few of the bride families in order to build a strong reputation in the society gives dowry. However, law acts as the only means to mitigate such unfair cultural norms.
The rudimentary cultural and societal norms in India acts as barrier while curbing the issue of patriarchy from the society. People within the society followed certain norms to regulate themselves and to maintain stability however such customs at times turns out to be detrimental for the society. One such example of such cultural norms was not allowing the females to claim possession over their ancestral property. Although the Hindu Succession Act was amended in 2005, the females failed to inherit their equal share of rights upon their ancestral properties. The loophole in the Hindu Succession Act (Amendment) 2005, initially emerged from the case Prakash & Ors. V. Phulawati & Ors, 2016[xii] it was stated that if the female co-parcener or the father of the female co-parcener was dead before the Act was amended, then the Act shall not apply; and the case Danamma. V. Amar Singh, 2018[xiii], contrasted the Phulawati Judgement, wherein Danamma was granted the co-parcener rights. Later in 2020 the case Vineeta Sharma V Rakesh Sharma, 2020[xiv] overruled both the previous judgements stating that both the sons and daughters are the co-heirs of their ancestral property by birth.
The scrapping of the draconian Article 377 legalized same sex relationship but there is still a long way for the LGBTQ+ community to gain complete acceptance from the society. Though the present generation being influenced by Westernization is becoming more open minded yet the people residing in the rural and suburban areas have a conservative mindset. There always exists a gap between perceptions and reality. The society has a preconceived notion that heterosexuality is the only moral approach to a physical relationship thereby, making many homosexuals scared of publicly identifying them as to what their personality is in reality.
The abolishment of the caste system gave a great relief to the backward classes ensuring that the progress of the society is at large and bringing about a progressive social transformation. However, in rural India, caste-based discrimination is still practiced on a smaller scale even today.
Rape laws are laid down in the Indian Constitution but rape cases aren’t decreasing. Fear of punishment should be incorporated instead of the actual punishment. Rape falls under section 375 of the IPC however, there are few loopholes in the rape laws; marital rape is an exception to the IPC. The case Sakshi. V. Union of India, 2004[xv] stated that only a heterosexual intercourse will be considered as rape, also Sudesh Jhaku. V. K.C.J and Ors, 1996[xvi] judgment held that inserting foreign objects in to a female’s vagina does not amount to rape according the definition of rape under section 375. But later insertion of foreign objects into a female’s vagina was criminalized according to the Section 354 of the IPC. In the case of Satish Ragde. V. State of Maharashtra, 2020[xvii], the appellant groped the breast of a 12 years old girl over her clothes whereas the Bombay High Court felt that groping without ‘skin-to skin contact’ does not amount to sexual offence under the POCSO Act 2012. This judgement faced severe backlash by the Supreme court and common mass as it incorporated a wrong message to the society because the term ‘physical contact’ was wrongly interpreted to mean ‘skin-to-skin contact’. Thereby, the accused was proven guilty and convicted under section 354 of the IPC along with sections 7 and 8 of the POSCO Act, 2012[xviii]. Law hence, sometimes having loophole promote the gap in the society for people to misuse it as observed from the case of Satish Ragde. V. State of Maharashtra, however the need for enforcement of clearer and stringent laws will helps curb the prevailing issues and thereby can be considered as a savior of the society.
The society is subject to incessant change causing ‘social change’ and law acts a means of social change. The exploitation of individuals is curbed through laws and the Indian Constitution is designed to triumph over this goal. Though law has brought a positive change in the society by criminalizing acts that were a threat to the mankind yet sometimes it faces backlash and leads to revolt against the law, for instance criminalizing Martial Rape is one of the most controversial topics among the society. With the help of laws, the old aged patriarchal Indian society is slowly turning into a gender neutral one yet it has a very long way to go for the society to be completely gender neutral, also ensuring that the progress of the society is at large and bringing about a progressive social transformation. Henceforth it can be aptly said that it is the law that brings about the much-needed social change in a positive way. Social transformation happens due to several factors such as demographic factors which includes the population rate within a specified area, socio-economic factors as well as cultural factors like that of the institution of marriages[xix], but the law is the most superior factor, and for a change to be beneficial, the society should follow the laws effectively as well as create awareness about pressing issues which require transformation through the means of law, since law aims to make the society a place worth living.
[i] Banerjee, O., Garg, R. (2020, December 20). How can the law be used as an instrument for creating social change? iPleaders. https://blog.ipleaders.in/can-law-used-instrument-creating-social-change/
[ii] Cambridge Dictionary. https://dictionary.cambridge.org/dictionary/english/dowry (last visited Feb 27, 2022).
[iii] The Dowry Prohibition Act, 1961.
[iv] Section 304B, Indian Penal Code, 1860.
[v] Section 498A, Indian Penal Code, 1860.
[vi]Rana, S., Garg, D. Daughter’s Right to Property. Legal Service India E-Journal. https://www.legalserviceindia.com/legal/article-3499–daughter-s-right-to-property.html#:~:text=Daughter%20shall%20have%20the%20right,recognized%20as%20coparceners%20since%20birth.
[vii] Section 377, Indian Penal Code, 1860.
[viii]Navtej Singh Johar v. the Union of India, AIR 2018 SC 4321.
[ix] Kumar, A. Rights of Transgender Under the Indian Legal System. Legal Service India E-Journal. https://www.legalserviceindia.com/legal/article-6958-rights-of-transgender-under-the-indian-legal-system.html
[x] Vishaka and Ors. V. the State of Rajasthan, (1997) 6 SCC 241.
[xi] Chopra, A., Asthana S. (2020, March 2). The Vishaka Guidelines: A step against Sexual Harassment. iPleaders. https://blog.ipleaders.in/vishaka-guidelines/
[xii] Prakash & Ors. V. Phulawati & Ors, (2016) 2 SCC 36.
[xiii] Danamma. V. Amar Singh, 2018 (4) ADJ 406.
[xiv] Vineeta Sharma V Rakesh Sharma, (2020) 9 SCC 1.
[xv] Sakshi. V. Union of India, AIR 2000 SC 3479.
[xvi] Sudesh Jhaku. V. K.C.J and Ors, Crl.R. No. 101 of 1996.
[xvii] Satish Ragde. V. State of Maharashtra, Criminal Appeal no. 161 of 2020.
[xviii]https://www.thehindu.com/news/national/skin-to-skin-touch-with-sexual-intent-amounts-to-assault-under-pocso-holds-supreme-court/article37555081.ece (last visited Feb 27, 2022).
[xix]https://www.shareyouressays.com/knowledge/7-main-factors-which-affect-the-social-change-in-every-society/112456 (last visited Feb 27, 2022).