LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
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, laws or procedures of various types control human activity, be it economic, social or political. Basically, however, the function of law is to protect, preserve and defend the members of society against internal disorder or
external threat. Thus, although appropriate procedure or “rules of the game” controls the entire gamut of human behaviour, our focus
here is on the legal system and its relation to stability and change.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
In order to have effective laws, society must provide moral sanction for them and authorities must enforce them.
people by the power of the state. The authorities usually give those who deviate from the law punishment of various kinds such as fines, imprisonment, exile or even death. However, the state which is an embodiment of the law may itself become arbitrary or tyrannical. When a gap occurs between law and justice, human spirit has often rebelled.
People have regarded men of great moral stature such as Socrates, Jesus, Gandhi 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 have orally transmitted laws and often cannot separate them from custom. There is no ground for the assumption of some people that preliterate societies are anarchic or lawless. Extensive data from Africa, Asia and Australia show that taboos, customs, and even formal laws regulate tribes well. 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, was exercised primarily by kinship units called lineages, clans, moieties etc. The normative control was maintained by the strict observance of taboos 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 internal order was maintained by taboos, inter-tribal relations and customs governed the behaviour of the people.
The taboos and customs were rooted in the tribal mythology, magic and religion.
For example, in some primitive tribes if any male married within the clan, it was considered as clan incest.
This act was believed to endanger the whole clan by bringing down upon it supernatural retribution.
Hence, a sanction like heavy fine or exile was method out to the offender.
In a preliterate society, whether the law was in relation 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, individual interests were overlooked, 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. Its farflung provinces in Europe, Africa and Asia were ruled efficiently by means of formal codes. 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.
The Hindu laws known as Dharma Shastras composed by Manu and others were intended 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 a nation-state is formed on the basis of integration of a number of groups, 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. There are geographic, historic and cultural factors which hinder legal uniformities. If these distinctions are obliterated at one stroke by a fiat of law it may cause grave imbalances in the social structure. However, a gradual reduction if not removal of dis- parities 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. Simila- rly, 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 desired by human society. Stable social life enables the pursuit of the individuals’ vocations peacefully. If there is anarchy; it not only leads to the disruption of social life but also makes human behaviour unpredictable. Hence, socialization of the children in the family or in the local community is the first step taken in a 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, he was cursed by the elders of the council.
This was believed to result in supernatural retribution (illness, misfortune or death) and hence the average villager dreaded incurring the wrath of elders who were the guardians of the law.
In the dispensation of justice in India, certain metaphysical notions were 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.
It may be noted that Hindu legal texts were 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. It was mostly with reference to Indo-Gangetic India that Manu’s laws were strictly applicable. Therefore, Manu’s laws must be viewed not in isolation but in relation to customary departures from his injunctions.
The Hindu legal texts composed by Manu, Vishnu and others were to some extent based on existing customs. However, there was an important difference between the customs and the texts In general customs were concerned with “what is”, by contrast, the texts dealt with “what ought to be done” to improve human behaviour. On account of this difference, there was often a tension or conflict 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, occasional concessions were made by rulers to the customary point of view. In a sense both norms and practices were elastic, especially where common people were involved. The legal texts did succeed in establishing a uniform code for India in spite of variant customs.
While the texts focussed on the social, religious and metaphysical dimensions, they did not throw much light on commercial or agrarian matters. In these areas, the customs of a group or community were applied 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 was toward the attainment of this reality that individual and caste practice was directed. Thus, custom contrary to orthodoxy, would not be followed, at least by the elite, and where such a custom was already in written form it could be, and was, argued out of existence. Custom was a human and social development, but the texts as expressed in the Shastras were not directed towards the maintenance of such development but towards 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. TheSoulson 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
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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, factional quarrels were among the items judged by these non-statutory bodies. While customs settled most of the disputes, occasionally people made appeals to an external authority such as the king or chieftain to intervene and settle a dispute in accordance with the legal texts. In administering justice at the micro-level, oral testimony, precedents, royal decrees and occasional resort to ordeals guided the village elders.
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 are being effectively governed by 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.
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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. Some of these differences between the two systems are carried over to the present. Although ambiguities persisted, the caste council and the village council had a complementary relationship. The cases which could not be sorted out at the caste council level were taken to the village council. The landowning castes (Rajput’s, Jats, etc.) tended to dominate the village councils also and hence tensions were often caused by village factions. 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.
Mention may be also made of 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). The maintenance of kinship ties even in the towns has lessened the loneliness, and some of the values of rural life are still cherished.
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, Vikas Panchayats complementary to Nyaya Panchayats were introduced in 1959. The members were elected to these Nyaya Panchayats directly or indirectly from among the gram panchayat representatives. There was an optimistic belief that these Nyaya panchayats would be the primary bodies of the State Legal System (SLS). Besides, the authorities also entrusted the gram panchayats with the 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. Tattoos and local customs govern them and organize them horizontally. 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, tribes decided their disputes within the framework of the tribal world. If the tribal village could not settle a dispute, they 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 custom settled routine disputes, 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 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. The judicial powers vested with the tribal councils were taken away by alien organization such as the courts of law introduced by the British.
\The introduction of statutory panchayats in post-Independent India has started a new phase in rural and tribal India. Although tribal councils still settle some of the ritual and local disputes, they seem to have lost their sense of purpose. Probably, we can revive many of the tribal councils to carry out some of the functions which they had performed earlier. The tribes have remained isolated so long that we can make them part of 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. Even today the tribals resent the inroads that outsiders make.
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, social anthropologists such as G. S. have done some notable work. Ghuraye, 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 rudimentary social organization. In this tribal society there is no external authority to impose sanctions. In a dispute, people regard might as right and no explicit moral notions such as “guilt” or “sin” influence the judicial proceedings. When someone wrongs a person, his kin-group comes to his rescue and organizes raids on the other kin-group whose member has offended. If they catch 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, we pay a compensation to the aggrieved party.
Although a formal judicial authority is absent among the Daflas, there are some conventions or codes which regulate the conduct
of people. When a feud arises, these conventions make negotiation and settlement possible. How- ever, if there is a miscarriage of justice, there is no appellate authority above the tribal kin-group or tribal village. The Daflas, therefore, represent an elementary kind of organization which is “repressive”. In this society there is no impartial judge who can decide a case; the parties in dispute act as their own arbiters. Also, the winner is lauded even though his action from the moralistic standpoint of a more enlightened society is wrong. The end justifies the means.
Published literature also makes scattered references to other tribes such as Garo, Naga, Tangsu, Lushei and Monpa. These tribes are 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 leave 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, and ward heads assist him. This council settles disputes and punishes the offenders who disturb the peace of the village. Among the Naga, the village empowers the village council 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. Even Gonds and Bhils made attempts 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 arbitration than those of the North-East. Among the Santhals, people call the headman masihi, and a number of other hereditary officials in the village assist him. 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, people call the headman “munda”. He serves as a civil authority and the pahan, who is a religious functionary, assists him. 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:
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In most of the tribes, the tribal councils still settle the ritual and social disputes, although people take economic disputes to the modern law courts.
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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.
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Previously, consensus was the usual mode of settlement: at present due to modern influences majority decisions have tended to replace it.
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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.
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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 broadly based on Anglo-Saxon canons of justice in which they emphasized obedience to the Rule and Law. In due course Anglo-Saxon laws predominated in many civil and criminal spheres, 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. the system retained many of 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 term. In the past, tribes decided their disputes within the framework of the tribal world. If the tribal village could not settle a dispute, they 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 custom settled routine disputes, 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 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 mortgaged their lands and livestock and many of them became landless or bonded labourers. The forest contractors, motivated momentary 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, rural and tribal India has started a new phase. Although tribal councils still settle some of the ritual and local disputes, they seem to have lost their sense of
purpose.
Probably, we can revive many of the tribal councils to carry out some of the functions which they had performed.
earlier.
The tribes have been isolated so long that we can bring them into 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 were exploitative District and Taluq Courts) were int
roduced.
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, the rulers introduced similar courts. 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 structural 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. One may note 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.
The Republic of India adopted the Constitution in the year 1950 and reorganised the judicature. The Supreme Court of India became the apex appellate body supported by state-level courts such as high courts, district courts, etc. Besides, the government established statutory tribunals for revenue, labour, and other matters. The government established the Law Commission of India 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.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
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 colonial government imposed a “top-down” model of law and required the “natives” 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. Certain local contexts such as the operation of Panchayat Raj confine people’s participation.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
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 demographic and geographic factors hinder people’s participation. 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. People widely feel that the rich and politically powerful individuals manipulate justice.
and groups.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
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 material changes such as technology, new patterns of production, etc. bring about much of social change. “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, rulers mainly directed laws towards maintenance of law and order and protection of their 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 initiative for the few laws enacted, relating to marriage, property, etc., came from the enlightened leaders of Indian society. The Congress ministries which gained power in eleven provinces in 1937-38 made possible even 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.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
While the country has made dramatic progress in particular sectors in heavy industries and agriculture, the dismal poverty of the countryside remains largely t
he same. Hope and disappointment at once confront the average Indian in contemporary India. We refer to some of the factors related to social change below.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
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State Initiated Legal Measures
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
(a) Introduction of New Institutions
At present, the state has initiated three legal institutions. These are the Nyaya Panchayats, Lok Adalats, and Legal Aid to the poor.
poor. As mentioned earlier, we have introduced the first two institutions 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.
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable b
ehavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
They are an alternative to the former caste and village councils. They have also succeeded in screening disputes at the village level so that they avoid excessive litigation. 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.
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define
acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
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. Legal aid extended to all urban settlements and villages can benefit the peasants, small traders, workers in small industrial units where unionisation has not taken place, domestic servants, casual labourers, etc. immensely.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
(b) Legal Reforms
The government 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, we have expected the LCI 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. They 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
interpreters have converted codes to accommodate diverse elements albeit within the framework of sacred authority.
By contrast legal reform proposals are actively developed by the Law Commission, which is formally constituted to make recommendations.
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.
Here we will learn the topic LAW AND SOCIETY. Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
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Citizens actively participate in legal change.
As yet contemporary legal activities have not 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 people followed traditional legal norms. 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.
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several
key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define acceptable b
ehavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from engaging in harmful
These Lok Adalat’ have explicitly related dispensation of justice to socio-economic process. For instance, courts have settled many land disputes and monetary claims expeditiously. 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.
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several key mechanisms: Establishing Clear Standards Law creates explicit rules and expectations that define
acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. Deterring Misconduct Legal consequences deter individuals from engaging in harmful
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.
Here we will learn the topic LAW AND SOCIETY.</h2>
Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define
acceptable behaviour. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from
engaging in harmful
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
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define
acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals from
engaging in harmful
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
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several key mechanisms: **Establishing Clear Standards** Law creates explicit rules and expectations that define
acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. **Deterring Misconduct** Legal consequences deter individuals
from engaging in harmful
This often includes having children and raising them within shared responsibilities and a nurturing environment. People can use marriage to gain social and cultural acceptance, as society often views it as a traditional and socially
recognized
institution.
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several key mechanisms: Establishing Clear Standards Law creates explicit rules and expectations that define
acceptable
behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. Deterring Misconduct Legal consequences deter individuals from engaging in harmful
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.
Here we will learn the topic LAW AND SOCIETY.
Law helps society maintain discipline through several key mechanisms: Establishing Clear Standards Law creates explicit rules and expectations that define
acceptable behavior. Citizens understand what society permits and prohibits, providing a framework for orderly conduct. Deterring Misconduct. Legal consequences deter individuals from engaging in harmful
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.