LAW AND SOCIETY

LAW AND SOCIETY. Explain in detail how law helps the society

Introduction: -Evolution of Legal Systems and the significance of Law in the Continuance of Human Society

Nearly all human societies, tribal, peasant or industrial, have laws or legal rules whose scope is coextensive with human life. In other words, human activity, be it economic, social or political, laws or procedures of various types control. Basically, however, the function of law is to protect, preserve and defend the members of society against internal disorder or external threat. Thus, although the entire gamut of human behaviour appropriate procedures or “rules of the game” control, our focus here is on the legal system and its relation to stability and change.

In order to have effective laws, society must provide the moral sanction and the power of the state must enforce them on the people.

Those who deviate from the law usually receive punishment of various kinds such as fines, imprisonment, exile or even death.

However, the state, which embodies the law, may itself become arbitrary or tyrannical.

When a gap occurs between law and justice, the human spirit often rebels.

Men of great moral stature such as Socrates, Jesus, and Gandhi have regarded as rebels against the state.

When the Church and the state became nearly identical in medieval Europe, authorities killed thousands of heretics.

At the same time the persistent question among jurists has been, “should law be concerned with what is, or what ought to be?” In preliterate societies, people orally transmit laws and often inseparable customs. Some people assume that preliterate societies are anarchic or lawless without any ground. Extensive data from Africa, Asia, and Australia show that taboos, customs, and even formal laws regulate tribes well. In order to have effective laws, society must provide the moral sanction and the power of the state must enforce them on the people. Those who deviate from the law usually receive punishment of various kinds such as fines, imprisonment, exile or even death. However, the state, which embodies the law, may itself become arbitrary or tyrannical.

When a gap occurs between law and justice, the human spirit often rebels. Men of great moral stature such as Socrates, Jesus, and Gandhi have regarded as rebels against the state.

When the Church and the state became nearly identical in medieval Europe, authorities killed thousands of heretics. At the same time the persistent question among jurists has been, “should law be concerned with what is, or what ought to be?”

But the tribes have varied patterns: for example, the rudimentary legal procedure found among the tribes of Polynesia, Melolanesia and Australia stands in contrast to the African tribes (Ashanti, Fanti, Bantu), which have well-defined tribal courts and unwritten but formal rules. In all the tribes, there is a near-equality before law as classes or castes are almost absent.

Legal control in preliterate societies, kinship units called lineages, clans, moieties etc. primarily exercised it.

The strict observance of taboos maintained the normative control, which were laws as well as being the basic fabric of society.

The tribal chieftain, who was often exempt from taboos, enforced the conformity of people to them.

While taboos maintained internal order, inter-tribal relations and customs governed the behaviour of the people.

The tribal mythology, magic and religion rooted the taboos and customs.

For example, in some primitive tribes if any male married within the clan, the community considered it clan incest. This act endangered the whole clan by bringing down upon it supernatural retribution. Hence, the community meted out a sanction like heavy fine or exile to the offender. In a preliterate society, whether the law related to a taboo or to a mundane dispute between two disputants (for example, default in debt payment or physical assault) a collective orientation seemed to prevail. Usually, the community overlooked individual interests in the larger interests of the community.In sum, in the preliterate societies, three elements were common: (a) an effective internalization of the law, (b) A near absence of formal agencies such as state and courts, and (e) hardly any change in law.

In complex, ancient civilizations such as Babylonia, Egypt, Israel, India and Rome the laws were usually based on customs, religious principles and the decrees of monarchs or heads of state. The laws were recorded in detail on clay tablets, parchment or palm texts for the benefit of posterity. Arnold Toynbee, the British historian, has called these ancient civilizations “ecumenical” states because they integrated diverse tribes or groups under the aegis of a religious doctrine. The rulers of these states were, therefore, entrusted with wide administrative and judicial responsibilities to govern a vast populace in an impartial manner.

Of these old civilizations, Rome created the most elaborate legal system which enabled it to exercise control over a heterogenous society. Formal codes ruled its farflung provinces in Europe, Africa and Asia efficiently. While the free citizens of the ancient world enjoyed legal protection, the slaves did not have even basic rights. However, a religious institution known as “manumission” considerably alleviated the sufferings of slaves. At the famous Pagan temple of Delphi, some Greek and Roman slave-owners gathered every year on a festive occasion to liberate slaves in fulfilment of vows. As an outcome of this, a number of slaves gained freedom.

Manu and others intended the Hindu laws known as Dharma Shastras to provide guidelines for maintenance of Varna, observance of Dharma, and the propitiation of ancestors and deities who were believed to be the guardians of social order.. These texts legitimised the institutions of a heterogeneous country and imparted social stability. On several occasions when India’s political unity was weak if not absent, these texts provided the source of new political order. The Hindu kings at various times drew their authority from these texts. These compendia of moral and juridical laws clearly show that in spite of their conservative stance, they were not averse to modification.

Thus, as societies have grown from simple to complex, there has been an extensive growth of legal rules. This gives rise to certain problems.For example, when integration of a number of groups forms a nation-state, it may be quite difficult to establish equality before law, as these groups may be at different stages of development or have separate legal codes. Geographic, historic, and cultural factors hinder legal uniformities. If a fiat of law obliterates these distinctions at one stroke, it may cause grave imbalances in the social structure. However, a gradual reduction if not removal of disparities is not only possible but also desirable, in view of the modern trend towards equality.

Some Sociological Approaches to Law

Durkheim. Karl Marx and Max Weber have made significant observations on law. Durkheim’s sociology of law was tied up with the wider context of transition from simple to complex society. An important index of this transition was that the law which was repressive earlier became restitutive or made reparation to those concerned as society became more complex. In other words, while the law in simple society was based on the principle of stringent punishment, in a complex society it was based on compensatory principle. However, W.J. Chamblis and R.B. Siedman, two American researchers in law, have pointed out that the reverse is true in many instances. In the preliterate society, there is a reciprocal relationship and also a personal tie between members. Hence, compensation for injury is accepted. By contrast, in large impersonal societies, repression by state or police is a common occurrence.

Karl Marx regarded the legal system of his times as the outcome of certain dominant and vested interests. Law enabled the dominant groups to preserve their privileges and impose their will on the rest of the society. Hence, in the communist society of the future, where private interests are replaced by collective goals, both state and law would be unnecessary. This future society would consist of guild-like collectivities marked by self-governance or self-regulation. As a critique of capitalist society, Marx’s theory of law is notable but in practice in the present – day socialist states, there is a considerable concentration of legal authority in state and repression of those who do not think on the same lines.

Max Weber’s theory of law derives from his notion of Rational-Legal Authority. In the study of historical jurisprudence, he described the gradual ascendancy of the rational-legal principle. The modern formal organizations (state, judiciary, etc.) are guided in principle by rational-legal norms. Of course, in substantive terms, there may be departures. The rational- legal norms emphasize some basic elements such as hierarchic structure of bureaucratic authority, division of spheres of work, impersonal interaction, specific functions and large-scale organization. Official procedures are the very basis of modern organizations, where contractual (means-end) relationship predominate.

In sum, sociological theories of law emphasize the significance of social factors in the study of law. In other words, law is rooted in social institutions, in socio-economic networks. These social factors influence the course of law or the direction of legal change. Besides, the sociological view also highlights the differences bet ween formal (normative) and substantive (operative) aspects of law. What is written into statute books is not always followed in practice. This is the outcome of personal and social inter- actions which are variable and often unpredictable. At the same time, law may itself change social norms in various ways. For example, in free India, legal abolition of untouchability is an attempt to change a long-standing social norm. Yet it has not succeeded much due to inadequate social support. Thus, there is a reciprocal relationship between law and society.

It is in order to note that law and social change are related to each other in intricate ways. Simplistic, populist notions will have to be avoided in judging the role of law in ushering in social change which

is a far more complex interaction. A contemporary Western jurist, Karl Renner, has argued that in Western countries, certain formal laws related to private property or

private interests have remained unchanged in some respects since 18th century but their social content has undergone marked change. Today property includes not only lands and buildings but also capital and wage, not to speak of intellectual property. This has led to the interference by formal organizations such as state, trade unions, etc. in dealing with matters of

property.

Further, according to Renner, private interests in many instances become public utilities. He cites the privately-owned Railways which became public utilities although formal ownership rested with private people. In India, we have the example of many privately-owned firms which became joint stock companies, although they are still

formally owned by a few families. Similarly, the rules of contract have remained more or less the same in industry, but the rise of trade unions

has introduced collective bargaining which in fact intervenes between contracting parties. In other words, mere change in statutes is not likely to bring about reforms. The social and economic implications are the touchstone of legal innovation. A populist approach to law tends to advocate abrupt changes in law and to ignore the evolutionary elements. Therefore, a cautious approach is necessary.

Law in Relation to Social Order in India:

The Interplay Between Values or Norms and the Law

Orderly social life is a goal that human society desires. Stable social life enables individuals to pursue their vocations peacefully. If anarchy exists, it not only disrupts social life but also makes human behaviour unpredictable. Hence, families or local communities take the first step in socializing the children.

society to inculcate the norms of social control. The later adult socialization reinforces conformity to the laws of society.

In complex societies such as India, customs rather than taboos governed the behaviour of people.

The caste councils and the village councils maintained a vigil over the people and enjoined upon them to abide by

customs.

In many parts of India, if someone gravely offended the caste or village council, the elders cursed him.

of the council.

This belief resulted in supernatural retribution (illness, misfortune or death), and hence the average villager dreaded incurring the wrath of the elders who guarded the law. In the dispensation of justice in India, certain metaphysical notions widely employed.

Kings and chieftains believed that the chief mission in their life was to establish or protect Dharma which summed up the cosmic-social values cherished by Hindus. Hence, the king who was the earthly guardian of Dharma punished offenders and rewarded complaint citizens. This ideal influenced most kings, be they Hindu, Buddhist or Jaina. Besides, there was a widespread belief in rein- carnation in Indian religions, namely that the individuals suffered for their past misdeeds in the subsequent birth. Even if a criminal escaped punishment here and now, in a future birth he suffered misfortune for his misdeeds. This belief in ‘Karma’ has acted as a deterrent, especially in keeping many people away from serious crimes such as murder.

Hindu legal texts built on hierarchical and patriarchal notions. Manu sanctioned lesser punishment to the Brahmin deviant. He also denied property rights to women. But even the Brahmin could not escape the Karmic reaction, and expiatory performances did not help one guilty of a grave crime such as murder. As regards women, Manu conceded the authority of customs in some parts of the country, such as the South where matriarchal laws prevailed. Manu’s laws strictly applied mostly to Indo-Gangetic India. Therefore, we must view Manu’s laws not in isolation but in relation to customary departures from his injunctions.

The Hindu legal texts that Manu, Vishnu, and others composed were to some extent based on existing customs. However, an important difference distinguished the customs from the texts. In general, customs concerned themselves with ‘what is’; by contrast, the texts dealt with ‘what ought to be done’ to improve human behaviour. On account of this difference, tensions or conflicts often arose between the two orders: “texts and contexts.” In the event of a dispute between the two, the king-in-council usually intervened and settled the issue in favour of the texts. At the same time, rulers made occasional concessions to the customary point of view. In a sense both norms and practices were elastic, especially where common people were involved. The legal texts succeeded in establishing a uniform code for India in spite of variant customs.

While the texts focused on the social, religious and metaphysical dimensions, they did not throw much light on commercial or agrarian matters. In these areas, the group or community applied their customs to settle a dispute. Likewise, the various trade or craft guilds followed their customary procedures. M.B. Hooker, a Western commentator on Hindu law, describes the difference between the text and the context as follows:

The rule of Dharma was an ideal system of classification providing a certain view of reality, and it directed individual and caste practice toward the attainment of this reality. Thus, the elite would not follow customs contrary to orthodoxy, and where such a custom was already in written form, someone could argue it out of existence. Custom was a human and social development, but the texts expressed in the Shastras did not direct themselves toward the maintenance of such development but toward higher forms of existence. It was during the colonial era that the British judges gave a rigid interpretation of the Hindu normative and customary laws.

There were other important groups in India which followed separate norms. The Muslims followed Shariat derived from Quran. The Christians followed canons derived from the Church or the Gospel. The various Indian sects such as Buddhists, Jains and Sikhs followed different versions of Hindu Dharma. Even today many social institutions among these communities (marriage, property, inheritance, adoption, etc.) are governed by ecclesiastical or customary laws. As in Hinduism, tensions do exist between the ideas and the reality in these communities. For instance, many Indian Muslims have retained Hindu beliefs and customs contrary to the injunctions of Shariat. Likewise, the tribal converts to Christianity are not always monogamous.

In fact, most communities in India were already advanced in terms of the richness and complexity of their laws, and Western concepts only supplemented them.

For example, the Hindu Code Bill of 1956 has retained many traditional elements in a modern legal framework.

The rational-legal principles of the West have no doubt influenced the Indian constitution and the various subsequent amendments or legislative acts.

In certain secular spheres such as trade, agriculture, administration, etc., the Western liberal laws have become the dominant force in present- day India. India’s freedom has not radically changed this pattern. Even today, the legislative work is conducted with reference to concepts of Anglo-Saxon law. But it is necessary to note that there is a gap between the normative and operative Aspects. This is because India’s social reality is complex and often defies the principle of rationality. For example, a number of private firms committed to high technology follow an ascriptive practice in selecting the chairman or the managing director. The Soul son or the nephew invariably succeeds the previous head of the organization:

Also, the colonial rule introduced into India certain private interest which were not part of the Indian society earlier. For example, the permanent settlement created a vast class of landlords who owned land and became a conservative force. The payment of salaries in sterling to the members of Indian Civil Service was still another legacy of colonial era. Although these privileges are abolished, the colonial attitude still persists in this country especially with regard to private property. Legal measures h reduced the importance attached to private ownership or control.

The really outstanding problem in Indian society is the legalism. There is a widespread adoption of dual stand law. The rich and powerful sections, politicians, top government functionaries, private businessmen are the ones who flout because of their privileged position. Tax evasion, manipulation of licences, acceptance of illegal gratification is a few examples of the defiance of law by privileged people. Most of these deviant acts are done covertly and even if exposed by judicial enquiry little follow-up action is taken against corrupt politician bureaucrats. It is ironical that often these people pose as the guardians of morality in public life

The socialization of people in regard to impersonal standards and values is incomplete.

The Indian citizens still live in the small and limited worlds of family, kinship or caste circles.

The disparity between private and public conduct is often glaring.

Thus, a corrupt businessman may be a good family man orstrict moralist in private life as if the two separate spheres E meeting point. In general, there is a low commitment to level or public values and norms in Indian society. In private circles the government servant who amasses wea unfair means is often regarded as “enterprising” and ” successful”. Cheating of the government by a trader does not always generate approbrium in primary groups. Similarly, a government servant or politician who secures jobs for his relative’sreceives special deference among his kin. It is this crisis in legal values that the nationmust overcome in attempting to implement the constitutional provisions in spirit as wellas the letter of the law.

Law as a Means of Social control: – Micro and Macro- levels in Operation

1. The Village Panchayat and Caste Council

An important institution in the Indian social structure is thetraditional panchayat. For centuries, the caste council and the village council have functioned partly as administrative and partly as judicial bodies. Ritual lapses, land disputes, sexual misconduct, and factional quarrels were among the items that these non-statutory bodies judged. While most of the disputes settled themselves within the framework of customs, external authorities such as the king or chieftain occasionally intervened to settle a dispute in accordance with the legal texts. In administering justice at the micro-level, the village elders guided themselves by oral testimony, precedents, royal decrees, and occasional resort to ordeals.

There is an impression in general that these older councils are no longer effective; this is not so. Many middle-ranking and lower-ranking castes in India have effective caste councils. A prime example of this is the Jats of Western U. P. studied by M.C. Pradhan, an Indian anthropologist who effectively governs the Jats through caste councils even at present. These Jat councils decide not only ritual disputes but also agrarian and economic disputes. Among the higher castes such as Brahmins, caste councils are weak and if they function at all, they do so under the guidance of heads of religious sects to whom they owe allegiance. For secular disputes, these groups have resorted to law courts.

The village councils were a replica of the caste councils on a wider scale. As the villages were autonomous, great authority rested with the village councils. Judicial decisions were given in the open, and nearly all adults participated in the proceedings. As the village was a “face-to-face” society, it was not possible witnesses to put forward false witnesses or evidence; but occasionally the coercive power of the village landlord or trader stifled the truth. Nevertheless, the easy access to a judicial settlement created no hiatus between normal life in the village and the judicial process.

II. Contrast with British Courts in India

By contrast, villagers who filed litigation in the British courts of law had to spend time away from the fields. This was a disaster to the people living on a subsistence economy especially for those in the lower rungs of the caste system. Hence, in spite of unequal distribution of power in the village, the councils functioned effectively because of their quick and public methods of bringing about justice.

With the establishment of the British courts in India, the dispensation of justice underwent a change.

According to BernardCohn, an American anthropologist, four discrepancies occurred between the indigenous jural tradition and the British juris prudence.

The first discrepancy was between the villagers’ hierarchical view of interpersonal relationship and the British notion of equality before law.

As a result, even if a lower caste person, particularly an ‘untouchable’, won his case against the Land-owning upper caste person, the harsh reality of the village power politics negated his victory. The landowner enjoyed a powerful position in the village and a remote British ruling could not ensure justice for the ‘untouchable’, who continued to remain in a subservient position. The second discrepancy was between status and contract. According to official rules, the relation between a landlord and a tenant was contractual, limited to the use of land and payment of rent; in personal terms, however, it was a multiple relationship involving reciprocal (Jajmani) obligations. Hence, a judgment given in terms of the contract was likely to harm the status relationship.

The third discrepancy occurred in terms of the decision itself. Usually, the British counts insisted on clear and firm decisions. By contrast, the caste and the village councils tried to bring about a compromise between the disputing parties; in this mode of decision there were no winners or losers but only parties to an agreement. In other words, the disputants did not lose “face” when a judgment was given. This was an important aspect of social life and one that was more acceptable than the rigid British code.

 Fourthly, the official courts usually dealt with the disputes placed before them rather than investigate into the past relationship between the two parties.

By contrast, the village councils tried to get at the root of the problem.

For instance, a land dispute might arise from a non-economic cause such as an old feud or rivalry.

As the caste or the village council was in intimate touch with the contenders, it could sort out the real issue. The two systems carry some of these differences over to the present. Although ambiguities persisted, the caste council and the village council had a complementary relationship. The caste council could not sort out the cases, so they took them to the village council. The landowning castes (Rajputs, Jats, etc.) tended to dominate the village councils also and hence village factions often caused tensions. That is to say, the caste council of a dominant group virtually became the village council, although it “co-opted” a few dependent groups into the latter.

One may also mention the presence of non-statutory jural bodies in the slums of urban-industrial centres. In Bombay, Calcutta, Kanpur and elsewhere, the immigrant groups have formed their own panchayats. They have imparted some stability and order. It is noteworthy that in relative terms the Indian slums are much less turbulent than their counterparts elsewhere. Deviance is not absent, but it has not attained explosive proportions. For instance, armed robbery, drug addiction, gang fights, etc. are the common features of urban centres such as Chicago (USA). People maintain kinship ties even in the towns, which has lessened the loneliness, and they still cherish some of the values of rural life.

In the post-Independence period, the introduction of the Panchayat Raj in the year 1957 introduced new elements.

Panchayat systems consist of two wings: Vikas Panchayats or development council, and Nyaya Panchayat or community for justice.

In many states, authorities introduced Vikas Panchayats complementary to Nyaya Panchayats in 1959. The gram panchayat representatives elected the members to these Nyaya Panchayats directly or indirectly.

There was an optimistic belief that theseNyaya panchayats would be the primary bodies of the State Legal System (SLS).

Besides, the authorities also entrusted gram panchayats with jurisdiction over minor disputes, both civil and criminal. Although the early response to this measure was good, the denial of even minimal finance to the Nyaya panchayats and the election of untrained members to administer law were some of the shortcomings.

The expectation that justice at the door step would lighten the burden on higher courts did not materialize.  In recent years, the introduction of Lok Adalat’s (people’s courts) is an attempt to reduce the distance between people’s perception of Law and the state’s legal stand. These Lok Adalat’s have attained a great success in Gujarat.

More recently (1986), the Lok Adalat’s have shown promising results in the Metropolitan Delhi, where many cases related to accident compensation were settled between insurance companies and the claimants.

The guiding principle of the Lok Adalat’s is the spirit of compromise rather than confrontation.

In that sense, they are reviving the method adopted by the caste and village councils, which tried to bring about compromise. In particular, the Lok Adalat’s are sure to reduce the sense of alienation that exists between the people and the judiciary.

An intriguing aspect of micro-level judicial process has been the litigation born of factional rivalry. The winning party in the village feels a glow of pride, if the opposing faction has lost the case. The limited surplus of the village money is often squandered on lawyers and court fees. Thus, unintentionally the SLS has become a partner in the factional struggles of the village. Also, excessive delays in judicial settlement are marked in the state legal system.

III. Tribal Judicial System

India has a large number of tribes in the North-Eastern, Central and South-Central regions.

The tribes of the North-East are of Tibeto-Burmese stock and mainly animistic.

In the Central and South-Central regions, the tribes are of Austro-Asiatic stock and follow an animistic religion.

However, many tribals in the north- east are Christians, while many in the South-central region are Hindus.

The tribes have had a distinctive judicial system and there are some important differences between the tribal and caste councils.

The tribes are clan-based and segmental in character where kinship is the predominant element; they are not part of a hierarchy.

By contrast, the castes have many non-kinship ties, as for example in a village where many castes co-exist on the basis of ritual purity.

These elements are absent in animistic tribes. They are horizontally organized and are governed by tattoos and local customs. 

The tribal values are a product of their interaction with nature and environment. There is no imposition of a nationwide religious model on them.

This means that with the exception of Christian and Hindu segments the tribes are autonomous in their value system.  In the past, the tribal world decided the disputes related to tribes.

If a dispute could not be settled within the tribal village, the villagers took it to the intervillage tribal council which served as the ultimate arbiter.

The main reason for tribal autonomy was its geographical separation from the caste-groups. By contrast, a dispute in a caste-based village could reach even the remote monarch.

Although the caste councils and village councils followed customary rules, the jurisdiction of Hindu Dharma Shastras included them. In other words, while routine disputes settled on the basis of custom, on occasions the king intervened with his vertical authority.

During colonial rule, the tribes in general suffered from the same disintegration as the castes. The influx of forest contractors, money-lenders, traders and missionaries into the tribal belt introduced new elements. Especially, the landowners and money lenders from the plains acquired assets in the tribal area, thereby causing a severe deprivation among the tribals. The tribals’ lands and livestock were mortgaged and many of them became landless or bonded labourers. The forest contractors, motivated by monetary greed, relentlessly depleted the forests which were the main source of tribal livelihood. As a result, the internal des of tribal life also broke down.Alien organizations, such as the courts of law introduced by the British, took away the judicial powers vested with the tribal councils.

With the introduction of statutory panchayats in post-Independent India, a new phase has started in rural and tribal India. Although some of the tribal councils still settle some of the ritual and local disputes, they seem to have lost their sense of purpose.

Probably, many of the tribal councils can revive some of the functions that they performed earlier. The tribes have been isolated so long that they can join the national mainstream only in gradual stages. During colonial rule, many tribes rose in revolt against outside exploiters, such as money-lenders and landowners. Even today, resentment among the tribals exists against inroads made by outsiders.

LAW AND SOCIETY. Explain in detail how law helps the society

Composition and Operation of Tribal Councils in India

References to tribal councils are scanty in the publications on

Indian tribes. There are very few analytical studies pertaining to tribal judicial process.

However, some notable work has been done by social anthropologists such as G. S. Ghurye, C. V. Furer Haimendorf and B. K. Roy Burman among others.

In general, the North-Eastern tribals such as the Dafla, Naga, Khasi and Garo have lineage-based, autonomous tribal councils.

The Daffas studied by Haimendorf have a radimentary social organiza- tion. In this tribal society there is no external authority to impose sanctions. In a dispute, people regard might as right and there are no explicit moral notions such as “guilt” or “sin” that influence the judicial proceedings. When a person is wronged, his kin-group comes to his rescue and organizes raids on the other kin-group whose member has offended. If someone catches the offender, they kill him as an act of revenge. However, the Dafla often employ a “go-between” who will try to bring about a compromise between the contending parties. In such instances, the kin-group pays compensation to the aggrieved party.

Although a formal judicial authority is absent among the Daflas, some conventions or codes regulate the conduct of people. When a feud arises, these conventions make negotiation and settlement possible. However, if someone mismanages justice, no appellate authority exists above the tribal kin-group or tribal village. The Daflas, therefore, represent an elementary kind of organization that is “repressive”. In this society, no impartial judge can decide a case; the parties in dispute act as their own arbiters. Also, society lauds the winner even though his action is wrong from the moralistic standpoint of a more enlightened society. The end justifies the means.

There are also scattered references in published literature to other tribes such as Garo, Naga, Tangsu, Lushei and Monpa. These tribes are aho autonomous political units. But they seem to have a more complex tribal organization than the Daflas. That is to say, the inter-clan authority may settle the dispute rather than leaving it to the wisdom of the clan itself. For instance, among the Konyak Naga, several wards divide the villages. Each ward has a number of patrilineal clans. A chief presides over the village council, assisted by ward heads. This council settles disputes and punishes the offenders who disturb the peace of the village. Among the Naga, the village council has the power to adjudicate the disputes arising in the village.

In South-Central India, the major tribes are Santhals, Munda and the Oraons. Ghurye has made reference to them in his writings.

In contrast to the North-Eastern tribes, the South- Central tribes have been in more intense interaction with the Hindus who have been adjacent to them in territory.

Even prior to British rule, Hindu religious and social influences had spread to the tribal villages.

There were even attempts made among Gonds and Bhils to adopt a feudal kind of rule which had prevailed among the Hindus. Thus the gond rajas established courts which consisted of feudal chiefs or nobles.

Also, the South- Central tribes appear to have a more complex judicial arbitra- tion than those of the North-East.

Among the Santhals the headman is called masihi who is assisted by a number of other hereditary officials in the village.

Among Santhals, beyond the village there is a tribal organization based on a group of villages Pargasa) which acts as the appellate authority.

The intervillage panchayat consists of headman from the constituent villages.

Among the munda the headman is called “munda”.

He is a civil authority and is assisted by pahan who is a religious functionary.

Beyond the village there is the patti or parka which is an intervillage group similar to the Santhal pergana, usually a parka or pargaue consists of ten villages.

The village headınan arbitrates in local disputes; ban the appellate authority is the parke council. Among Oraons also there are the munda and parha mentioned above; besides, there is the mahate who assists the first two officials, especially in the settlement of civil disputes. The parhu or the federal organization of villages of the Oraons is based upon local contiguity. It normally consists of three to five villages. The parha or the Panchayat mecis only once a year and deals with matters of interest to the whole community such as disputes, dates of festivals, guarding the boundaries of villages, etc. The Hill Maria who are an extensive tribe in Central India have a judicial organization similar to the Santhals.

In sum, the tribal panchayats have some common features which are as follows:

1. In most of the tribes, the ritual and social disputes are still settlled by the tribal councils, although economic disputes are taken to the modern law courts.

2. The tribes do not make a clear-cut distinction between sacred and secular institutions. The head of a traditional panchayat often acts as a religious authority.

3. Previously, consensus was the usual mode of settlement: at present due to modern influences majority decisions have tended to replace it.

4. The introduction of new judicial practices in the tribal area has led to confusion in the minds of tribals. The tribals are often unable to understand the new procedures.

5. The new tribal leadership is becoming more secular and non-hereditary.

IV Legal System in Modern India

The British rule introduced into India legal organizations not only to maintain law and order but to protect the colonial interests in the subcontinent. The British introduced a judicial system that was broadly based on Anglo-Saxon canons of justice, emphasizing obedience to the Rule and Law. In due course, many civil and criminal spheres saw the predominance of Anglo-Saxon laws, but in certain social fields such as property inheritance in the family, partition and joint family interests (business, etc.), marriage, divorce, adoption, succession, caste disputes, etc., many individuals retained the traditional legal norms. The legislative enactments during British rule introduced some modifications in the traditional laws with a special view to grant autonomy to individuals in inheritance, etc.

The conspicious feature of the legal system referred to above was the dispensation of law through the law courts.

In the three major Presidencies, high courts and subordinate courts (Sessions ,and environment. )

There is no imposition of a nationwide relgious model on them. This means that with the exception of Christian and Hindu segments the tribes are autonomous in their value system. tem. In the past, the tribal world decided the disputes related to tribes. If a dispute could not be settled within the tribal village, the villagers took it to the intervillage tribal council, which served as the ultimate arbiter. The main reason for tribal autonomy was its geographical separation from the caste-groups. By contrast, a dispute in a caste-based village could reach even the remote monarch. Although the caste councils and village councils followed customary rules, they were not outside the jurisdiction of Hindu Dharma Shastras. In other words while they settled routine disputes on the basis of custom, on occasions the king’s vertical authority intervened.

During colonial rule, the tribes in general suffered from the same disintegration as the castes. The influx of forest contractors, money-lenders, traders and missionaries into the tribal belt intro duced new elements. Especially, the landowners and money lenders from the plains acquired assets in the tribal area, thereby causing a severe deprivation among the tribals. The tribals’ lands and livestock were mortgaged and many of them became landless or honded labourers. The forest contractors, motivated hy monetary greed, relentlessly depleted the forests which were the main source of tribal livelihood. As a result, the internal des of tribal life also broke down. The judicial powers vested with the tribal councils were taken away by alien organizatious such as the courts of law introduced by the British.

With the introduction of statutory panchayats in post-Indepen dent India a new phase has started in rural and tribal India .

Although some of the ritual and local disputes are still settled by the tribal councils, they seem to have lost their sense of purpose.

Prolably, many of the tribal councils can revive to carry out some of the functions which they had performed earlier.The tribes have isolated themselves for so long that they can join the national mainstream only in gradual stages. During colonial rule, many tribes rose in revolt against the outsiders such as money-lenders and landowners who exploited them. District and Taluq Courts introduced reforms. However, the Privy Council of Britain was the supreme legal institution for appeals from India. In the Princely States, especially the progressive ones such as Mysore, Baroda, Travancore similar courts were introduced by the rulers. Thus, Indian society witnessed the gradual spread of certain modern legal concepts such as equity before law, riglu arbitration, etc. However, within the 10 framework of modern law, the stuctural inequalities arising from disparities in caste and status have continued in Indian society.

An important outcome of the modern legal system was the growth of professional groups such as judges, lawyers, pleaders, etc. Many people received training in law and started their practice in towns where the courts were located. As the Indian villagers had difficulty in understanding and relating to urban based law courts which were far away from the villages, the lawyers mediated between the former and the latter as inter- preters of law. It may be noted that during the colonial rule there was no sharp separation between executive and judicial roles. The administrators had also jural duties especially at the lower levels. The separation between the executive and the judiciary became nearly complete in-the-post-Independence period.

After the Republic of India adopted the Constitution in the year 1950, the government reorganised the judicature. The Supreme Court of India became the apex appellate body, and state-level courts such as high courts and district courts supported it. Besides, authorities established statutory tribunals for revenue, labour, and other matters. The Law Commission of India was established to suggest and recommend appropriate legal measures. The present legal system rests not only on an extensive network of legal organisations but also on a growing corpus of laws, precedents, etc. The legislative bodies all over the country are producing new acts and amendments every year. For the common people, the modern laws have become nearly incomprehensible.

During the British rule, participation in the legal system by the broad masses of people and by the groups affected by it, was virtually unknown. However, during the freedom struggle, people often protested against oppressive laws through public demonstration. In British India, the authorities imposed a “top-down” model of law, and the “natives” were required to abide by it or face penalty. Among the participants in the freedom struggle there was a hope that the legal system in free India would rest on democratic norms. Despite this hope, domination by the elitist group in post-independent India has continued. People confine their participation to certain local contexts such as the operation of Panchayat Raj.

The representatives of people in Parliament and state assemblies wield “delegated authority”. They seldom consult their constituents as to whether the proposed laws would be agreeable to them. Of course, in a large, heterogeneous country the participation of people is hindered by demographic and geographic factors. The interest groups of the Western type where people articulate their political needs have not yet emerged in India, except in a few urban centres. For the vast mass of people, modern laws do not seem to promise redemption from economic and social tribulations. There is a widespread feeling that justice is manipulated by the rich and politically powerful individuals

and groups.

LAW AND SOCIETY. Explain in detail how law helps the society

Law and Social Change in India

Social change involves an alteration of society; its social structure, values, and beliefs, and its economic, political, and social dimensions also undergo modification.

However, social change does not affect all aspects of society in the same manner.

While much of social change results from material changes such as technology, new patterns of production, etc.”other conditions are also necessary.

For example, legal prohibition of untouchability in free India has not succeeded because of inadequate social support. At the same time the law on the practice of untouchability has lent recognition to those who protest against it.

For instance, while in isolated cases individuals have suffered, the organised protest by the deprived groups has reduced the extent of oppression. The activities of Dalit Panthers in Maharashtra bring out this point clearly.

Thus, although law can- not bring about change without social support, it can create certain preconditions for social change.

During the colonial period, officials mainly directed laws towards maintenance of law and order and protection of rulers’ interests.

The colonial perspective limited itself to a few economic and social aspects.

For example, after the abrogation of East India Company in 1858 and the takeover of India by the British Government, the rulers no longer initiated social reforms. The enlightened leaders of Indian society initiated the few laws enacted, relating to marriage, property, etc.

Even the Congress ministries that gained power in eleven provinces in 1937-38 made possible the limited educational and administrative reforms.

After Independence the Constitution of India provided far reaching guidelines for change. Its Directive Principles suggested a blue-print for a new nation. The derecognition of caste system, equality before law, and equal opportunities for all in economic, political and social spheres were some of the high points of the Indian constitution. The problem in Indian society is the non- fulfilment of constitutional directives, especially in respect of economic improvement of the masses. While the country has made dramatic progress in particular sectors in heavy industries and agriculture, the dismal poverty of the countryside remains largely the same. Hope and disappointment at once confront the average Indian in contemporary India. Some of the factors related to social change are referred to below.

LAW AND SOCIETY. Explain in detail how law helps the society

1. State Initiated Legal Measures

(a) Introduction of New Institutions

 There are three state-initiated legal institutions at present These are the Nyaya Panchayats, Lok Adalat’s and Legal Aid to the poor.

The first two institutions, as mentioned earlier have been introduced to supplement the existing judicial bodies.

In the Northern belt, especially U.P. Rajasthan and Bihar have experimented with the Nyaya Panchayats for more than two decades.

Although they have not been completely effective, they have familiarised people with the secular concept of law. They are an alternative to the former caste and village councils.

They have also succeeded in screening disputes at the village level so that excessive litigation is avoided. But their main limitations are the paucity of resources, limited judicial powers and also non-availability of legal minded people

in villages. The success of Lok Adalat’s in the tribal belt of Gujarat was possible because of dedicated work by Sarvodaya Volunteers,

jurists and an enthusiastic public. More recently, Lok Adalat’s are settling insurance claims, etc. in the metropolitan centres such as Delhi.

The legal Aid to the poor is complementary to the Nyaya Panchayats and Lok Adalat’s. The main reasons for introducing this are the paucity of lawyers in small towns and villages, the in- creasing cost

of litigation and the lack of awareness of law among ordinary people. The deployment of lawyers at state expense has already taken place in a number of states. If it is successful, it achieves a dual purpose. On the one hand, it offers employment to trained lawyers who are still struggling to establish themselves. On the other hand, it enables the helpless individuals to get some settlement. The peasants, small traders, workers in small industrial units where unionisation has not taken place, domestic servants, casual labourers, etc.

Can benefit immensely if legal aid is extended to all urban settlements and villages.

(b) Legal Reforms

The Government of India has entrusted the Law Commission of India (LCI), which came into existence in 1955, with comprehensive terms of reference.

These include not only the traditional spheres of law such as Company Law, Civil and Criminal Procedure, contract Act, Stamp

Acts, etc, but also the laws oriented to social change such as those related to the implementation of Directive Principles,

especially economic items such as cooperative, credit, agricultural wages, tenancy, etc.

Besides, the LCI is expected to reform the existing social legislation or usher in new laws with regard to.

weaker sections, bonded and contract labour, juvenile delinquents, mentally ill and physically disabled.

While the Law Commission has modernised the existing laws in the traditional sphere “The Lawyer’s Law” it has hardly taken

steps to recommend appropriate legal changes in economic and agrarian matters .Jurists have dominated it and have taken a more or less purely professional attitude towards reforms. According to Upendra Baxi, “Ideally, the LCI should become both a statutory and a continuing agency. Ideally, its composition (both full-time and part-time) must have the best juristic talent and should have representation from social sciences.

It should have a multi-disciplinary approach, both at the level of the secretariat as well as that of the Commission.

Ideally, again, it must engage in a comprehensive, sociologically oriented, systematic programme of reform, not just of the lawyers’ law but of legal institutions and processes. It ought to be a monitoring

agency, a planning body, for the future of the Indian legal system at the national level” (emphasis in the original). At present, LCI has only attempted to bring about “piecemeal

reform”; it has an ad hoc approach to many issues rather than an

integrated perspective. Some of the traditional system of law like the Hindu Dharma Shastras and the Islamic Shariat were responsive to changing

needs and circumstances. Hence, these legal

Authorities have interpreted codes to accommodate diverse elements albeit within the framework of sacred authority. By contrast, the Law Commission formally constitutes itself to recommend.

legal changes have not been effective. The ineffectiveness of legal institutions in meeting the needs of society has slowed down the pace of social change.

2. People’s Participation in Legal Change

The contemporary legal activities have not yet involved masses in India. For centuries, the Indian masses have lived in the small and limited world of region, village, caste, tribe or clan, where traditional legal norms governed their lives. Although the caste, village or tribal councils often initiated changes to suit new circumstances, they confined these efforts to limited circles. Today, the participation of people in developmental efforts is on a much wider level. The Five-year plans have offered blue- prints for rural development. But the weak response from people is a hindrance. The remarkable success of Lok Adalat’s in the Rangpur area of Gujarat in recent years has been mainly due to the intensive participation of the people.

These Lok Adalat’ have explicitly related dispensation of justice to socio-economic process. Freedom from the tension of a dispute has a positive effect on economic activity. Hitherto, litigation in the courts has depleted people’s time and money and turned them away from commitment to work. Extension of Lok Adalat’s to the other parts of the country, under the guidance of jurists, government authorities and social workers will contribute to change and progress. Similarly, the revival of old non-statutory bodies, wherever possible in a secular set up, would supplement the work of Lok Adalat’s and Nyaya Panchayats.

In recent years, the public interest in litigation has increased. Social activists and voluntary bodies have filed litigation in the court of law, although they do not stand to gain materially. In Indian society, few people come forward to fight cases in the court, even if they have suffered damage. Unless the victims come forward, the matter never reaches the court. In such a situation the public interest in litigation promises a way out. Journalists, lawyers, social workers have knowledge of the “seamy” side of life and they are in a position to approach a civil or criminal court for appropriate action by the government. Of course, in this type of litigation, publicity-seeking by individuals may be implicit to some extent. Nevertheless, it is an effective weapon to uncover the scandals and deceptions through exposure in the courts of law

So, the main objective of marriage is to build a deep connection and support system to rely on. Marriage involves a commitment to a lifelong partnership, where both individuals shared a life to spend together. So one of the objective is to create a strong bond based on mutual respect, love, trust, and teamwork

This often includes having children and raising them within shared responsibilities and a nurturing environment. Marriage can aim to gain social and cultural acceptance, as society often views it as a traditional and socially recognized institution. So, another objective is to have one’s relationship and commitment acknowledged and respected by family, friends, and society at large. Marriage offers an opportunity for personal growth and self-development. The objective is to learn and grow together as a couple, supporting each other’s individual aspirations, and becoming the best versions of themselves. Marriage seeks to promote emotional and physical intimacy between partners

LAW AND SOCIETY. Explain in detail how law helps the society