Evolution Of Legal Concepts and Social Reality

Lokayukta of Bihar Cardozo had once remarked that there are no universal rules of law; hardly a rule of today that may be matched by its opposite of yesterday. Allen seemed to agree with him when he wrote in his celebrated book 'Legal Duties' that "the moment we had disengaged some principle of which we think to say, with a sigh of relief" well that at least is an indispensable element of all law" some patient I investigator into the legal systems in the mists of antiquity will discover a fragment of stone or pottery which disturbs all our conclusions. There may be principles of law generally, accepted although not universally and as pointed out by G. W. Paton much of what Romans considered universal is today considered of the particular conditions in which Roman law was developed. This paper considers, in brief, the evolution of legal concepts in the context of social reality.  No human society, primitive or advance, imperialist or communist can survive and flourish without prescribing norms and rules for the conduct of man, his relationship to other human beings and his behaviour and actions in definite situations. The primitive communities defended themselves against the breaches of the norms of life and with the advancement in culture and standard of living they provided sanctions against such breaches of the rules. Whenever such breaches occurred in the primitive society, it found out ways and means to curb the excesses. Crime originated as a result of the exploitations of man by man as also of natural resources by man. This gave birth to criminal jurisprudence. The exploitation of man by man was founded on the private ownership of the means of production. Individualism and egoism impelled him to resort to those ways which were anti-social and anti-productive. This in turn resulted in the disintegration of the old community of interest. Crime has thus its roots in the conditions of Life brought about by exploitation and in the resultant social order. Its causes are not, therefore, only the environment and the heredity but also the, peculiar socio-economic conditions in a given time and place. The criminal law in democratic countries has hence been so designed so as to subserve private ownership and protect the person and property of the individual. It also aims to protect the State from rebellion and preserves the authority of the Government. The criminal law also ensures the individual full and undisturbed enjoyment of his properties and guarantees the maintenance of a social order based on private ownership. It recognises in full the civil rights, of the individual and frowns upon their slightest infringement and encroachment.  In communist countries also criminal law regulates and controls the individual's behaviour as against another citizen, the society and the State. Marx and Engles defined the Character of crime within the bourgeois society as the spontaneous anarchic struggle waged by the isolated individuals against the prevailing conditions. Communist jurists think that crime is alien to the very nature of communism and that crime can be understood in a historic sense only as a relic of an outdated society. Egoism, individualism and greed for personal enrichment are foreign to the principles of life in communism, hence criminology in advanced communist countries proceeds to analyse concrete social and personal conflicts which are connected with the committing of criminal offences. It, therefore, deals with the way of life of offenders, their development and motivation and encourages integrated research on social conflicts by various sciences as economics, sociology, psychology and other disciplines.  In developing countries, menaced by a fast escalating population, social evils like hoarding, black-marketing, corruption, poverty, juvenile delinquency, the siphoning off of distributive justice and conferment of grants and privileges on undeserving and sycophants are all incidents of life glaring to the naked eye. Hence, besides social and individual offences, economic offences also occur and these are more associated with the middle and upper classes of society. It has obviously added a new chapter to criminal jurisprudence. To some extent it is the out-come of industrial Revolution though Renaissance and Reforms also contributed to it in great measures. Renaissance even questioned the existence of God and made people irreligious. The fear of God was sought to be removed by the impelling forces of materialism. Acquisition of wealth became the final end of human activity. Moral values were either changed or thrown to winds and fraud, misappropriation, misrepresentation, corruption, and adulteration became the technique of trade, commerce and profession. As the concept Of laissez faire held the field, economic-offences became more common. It was a society in which two categories of rights, property and freedom of contract, were paramount. Legal concepts were so moulded as to protect these rights. However, with the reorientation of the methods of development and massive interaction in the international fields restating norms and values and rediscovering the frontiers of the rule of law became essential. Robert F. Kennedy was then impelled to observe in his address on the Law Day in Chicago in the year, 1964.  "To the poorman "Legal" has become a synonym simply for technicalities and obstructions, not for that which is to be respected. The poor man looks upon the law as an enemy, not as a friend. For him law is always taking something away." Kennedy emphasised that "unassorted, unknown, unavailing rights are not rights at all."  In India The cultural heritage of India contains the idea of Ritam, like the leges Aeterna of Romans, 'Rigved' points out that the moral order is the synthesis of the inside and the outside of Atman. This is supplemented by the rule of Dharma. In Mahabharat, Karn Parva, it has hence been ordained.  "Dharnan Dharm Ilahuh, Dharmo Dharyate Prajah Yodha Ranam Samutah, Sadharm Itmuchyate."  धारणम धर्म इलाहु :, धर्मे धरयते प्रजाः !  योधारंण समुतः सधर्मा इत्मुच्यते !!  The word Dharma comes from the root Dhri i. e. 'to hold, "uphold". It connotes that human beings are held together by Dharma. That by which the holding together (of all human beings) takes place is Dharma. Dharma is that which bears, maintains or sustains the spirit of the social structure, the maintenance of social order and the welfare of humanity. In this enunciation of Dharma is found engrained the functional or sociological theory of law which later came to be propounded by Dean Roscoe Pound in the beginning of this century. This philosophy of law regards law as an instrument of social engineering. But law can sustain social order and hold together human beings constituting the society if it keeps pace with changing social concepts and values. Law which is not dynamic dies out. Dynamic law strives on harmonious adjustment of human relations by removing social tensions and conflicts and in the process of development it must adopt itself and be responsive to the needs of the society. For, it "deals not only with principles but also with people" and affects their lives. The basic tenor of law in ancient India, therefore, was that society should uphold Dharma so that Dharma sustains society. The upnishadic doctrine, which departs from Austinian theory, is as follows :  "Law is the king of kings, far more rigid and powerful than they; there is nothing higher than law; by its prowess as by that of the highest monarch, the weak shall prevail over the strong."  In modern India its people have eloquently proclaimed in the constitution their full faith in justice social, economic and political and in the liberty and fraternity as well as in the equality of status and the dignity of the individual and the unity and integrity of the nation. The objective of law, therefore, is to achieve and ensure social and economic justice. The concept is well stated in part IV of the Constitution dealing with the Directive Principles of the State Policy and also in the Fundamental Rights detailed in Part II of the Constitution. The socio economic changes in India are sought to be brought about only by the process of law. In pre-independence era the doctrine of 'laissez faire' prevailed in our country, the objective of law being merely to preserve law and order and to protect the establishment. Law was used as an instrument for the purpose of maintaining foreign rule. After Independence, socio-economic concepts have begun to change. Law also has gradually started assuming new dimensions. Law of socio-welfare State is now coming to fore-front with an avowed object to serve and protect the interest of the weaker sections of the community. The doctrine of laissez faire is yeilding to welfare state and collectivism and the conflicts between privileges of a few and the just and legitimate demand of the many are now more discernible.  More recently the Suprme Court has added new dimensions to the rule of law by devising new techniques with a view to prevent abuse of executive discretion to reach socio-economic justice to the common man. Five different types of commitments have been dev been developed by the Supreme Court, namely,  commitment to participative justice; commitment against arbitrariness in State action; commitment as regards just standards of procedure; commitment to immediate access to justice and commitment to rights mobilisation in the real sense. Maneka Gandhi's case, Sunial Batra cases, Bihar under trials case, Panjab Police case and the Bombay Pavement Dwellers' case and a few other cases have set out new techniques and new tools for the purpose of developing public law. It is strongly felt that indiscipline, Insubordination and strike are not synonyms just as victimisation, harassment and nepotism do not stand for good administration. So, fundamentals of law are now intimately being integrated with social Realities.  There is no gainsaying that in India millions neither make the law, nor know the law, nor reach the law. At the same time history reveals that in our country, most ancient, most constant and most universal desire has been for a just law among peoples and nations. Our constitutional order shows deep interest in the poor and the weak and is anxious to remove the inherited imbalances and injustices. Article 38 of the Constitution of India is the heart of the Constitution. It provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of national life. Access to justice is hence crucial to social justice. Access to justice involves access to law making including lobbying for the poor with the legislators, 'access to adjudicatory process' and 'access to law enforcement' including participatory role in the execution of laws.  Article 39A directs that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity. It shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. It has been realised that there would be no justification for saying that justice should be denied if a person cannot pay the price fixed. The cost of securing justice being too high the poor yields, though grudgingly, to the exploitation. In other words the social reality of abject poverty finds the concept of equal justice or equal protection of law an illusion or a myth. Article 39A strives to 'bring healing balm to bleeding hearts'.  Our constitution most emphatically asks that the State shall endeavour to eliminate inequalities of status and opportunities and to see that the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth to the common detriment. These are the objectives to be achieved. But notice the anomaly of laws. Law in its majestic equality forbids the rich as also the poor to sleep under bridges, to beg in the streets and to steel breads. Law must reflect and meet the needs and aspirations of the society which it intends to govern. Not rarely it meets one situation arid in the process of implementation it gives birth to new social problems which necessitate the modification of law itself.  Here the Judge made law plays a vital role in the progress of society and the question often asked is "does the court sit in a sound proof room" unmindful of what goes on outside ? Perhaps not always. The Supreme Court of U.S.A. defended the right to property till 1937. The shift in the positions of Hughes, C.J. and Robers, J. made it possible for the U.S. Supreme Courts to uphold the New Deal measures of the U.S. President F. W. Rooseveit. Oh the role of the Court vis-a-vis the property one is reminded of the observation of Justice Brandes of the U. S. Supreme Court in the famous case of the New State Ice Company v. Liebnann, (1932) 285 U.S. 262. He said:  "there must be power in the States and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. This court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that in our opinion, the measure is arbitrary, capricious or unreasonable. But in the exercise of this high power we must be on our guard, lest we erect out prejudices into legal principles."  Alexander M. Perkelis in his book "Law and Social Action" has pertinently remarked;  Whether or not a close relation between the Bench and the public opinion is desirable, historical forces have brought it about, it seems fatuous to attempt to return to the past. It is useless for the Judges to behave as if no one knows their priestly secrets."  In the U.S.A. the Supreme Court for some time interpreted the Constitution with a strong property bias and the doctrine of "Due process", was used to invalidate measures controlling property and business but by 1937 the U.S. Supreme Court abandoned its support and concentrated on the protection of liberties. The Warren Court from 1954 to 1959 left the State policies in the economic field alone and devoted only on the protection of liberties.  In India the Court defended "Property Rights" till 1973, Bank Nationalisation case' Privy Purses case, and many other cases are eloquent examples of the same. But, this trend is now almost given up because property right has ceased to be a fundamental right. The Supreme Court is now concentrating more on the protection of liberties and is exploring new dimensions of the concept of "due process of Law". This shift in the trend is attributable to the rule of life and the social realities of the day.  It would be seen that the Constituent Assembly had discussed the question of inclusion of the "due process" clause in our Constitution but it was decided not to include it. Instead, it was resolved to use the phrase "except according to procedure established by law". The Supreme Court for almost twenty seven years after the enforcement of the Constitution had consistently held, right from A. K. Gopalan's case (AIR 1950 SC 27) that Article 21 of the Constitution merely embodies the concept of the Rule of Law that no one can be deprived of his life and personal liberty by executive action unsupported by law. But in the land-mark decision in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597 the Supreme Court made a departure by holding that Article 21 affords protection not only against excutive action but also against legislation and no law can deprive a person of his life or personal liberty unless it prescribes a procedure which is "reasonable, fair and just" and if it is not, the Court will strike down the law as invalid. Thus the Supreme Court introduced" procedural due process" In the constitutional law:—  But law has its limitation and more so when it is used as a means of social control. The first limitation seems to be about ascertainment of facts. The other is about its limited range of remedies, the third obvious limitation of law is with regard to its unintelligibility and in-accessibility and the fourth limitation pertains to the constraints resulting from "process-values" such as the rules of natural justice which sometimes limit the efficiency of the relevant law. The force of evolution and revolution require law to overcome these limitations, to take into account the social inequalities and to investigate social situation. This inevitably involves a radicle reappraisal of the concept of the legal process. In this arena most vigorous encounter has been made with the principle of "Locus standi". In a pyramidical system of justice operating in our country, one who seeks justice is given justice, though after a long waiting and at great cost. But there are millions who are unaware of their rights given under law and of the benefits of welfare legislation and who suffer exploitation because of their extreme poverty. These people are just unable to have access to justice. It is in the background of this stark social reality that the concept of "Locus standi" has been reshaped and reenunciated so that justice may not be denied to the destitute and the under-privileged and they should have access to the apex court with least cost.  The Supreme Court, while considering the ambit and scope of Article 32 of the Constitution in the case of Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 laid down that Article 32 does not merely confer power on the court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on the court to protect the fundamental rights of the people and for that purpose the Supreme Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental right. "Public interest litigation" or "social action litigation" is a new strategy innovated by the Supreme Court to secure enforcement of the fundamental rights, in formulating this new strategy of legal process the Supreme Court has on a number of occasions observed in no unmistkable terms that where there is a violation of fundamental or other legal right of a person or class of persons who by reason of poverty or disability of socially or economically disadvantaged position can not approach a court of law for justice it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing a regular writ petition but also by addressing a letter to the Court. Ordinarily, a claim for compensation for infringement of a fundamental right is to besought by invoking the jurisdiction of the Civil Court but in exceptional cases where the infringement of the fundamental right is gross and patent and the infringement is on a large scale affecting the fundamental rights of a large number of persons or it appears unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the affected person or persons to initiate and pursue action in Civil Courts. Compensation can be claimed, and awarded in a petition under Article 32 of the Constitution (See Bandhua Mukti Morcha case AIR 1984 SC802, Rudul Shah v. State of Bihar, AIR 1983 SC 1086 and M. C. Mehtav. Union of India, AIR 1987 SC 1086). On the emergence of "collective petitions" Justice Krishna Iyer had observed in Akhil Bhartiya soshit Karmchari Sangh (Railway) v. Union of India, AIR 1981 SC 298 that "our current processual jurisprudence is not individualistic Anglo Indian mould but it is broadbased and people oriented and envisions access to justice through "class action", "public interest lifigation" and "representation proceedings." He commented that "we have no hesitation in holding that the narrow concept of "cause of action" and "person aggrieved" and individual litigation is becoming obsolescent in some jurisdictions."  This new mode of seeking redress gained strength through a number of cases, namely, Fertiliser Corporation Kamgar Union v. Union of India, AIR 1981 SC 344, P. S. R. Sadhananthan v. Arunachalam, AIR 1980 SC 856, S. P. Gupta v. President of India, AIR 1982 SC 149, People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 and in other cases and finally in the latest celebrated decision of the Constitution Bench of the Supreme Court in the case of M. C. Mehta v. Union of India, AIR 1987 SC 1086 where in the Supreme Court affirmed its earlier view that the Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or social action group acting pro bono publico would suffice to ignite the jurisdiction of the High Court to the Supreme Court in the case of the poor and the disadvantaged who are victims of an exploited society without any access to justice. The requirement of "standing" or "locus standi" has thus been sufficiently liberalised in view of the social reality that there are millions in our country who due to their abject poverty and ignorance have no access to justice and suffer exploitation. There can be no manner of doubt that persons whose legal rights are directly and substantially affected can directly file a petition in their own name and seek appropriate remedy from a court of law. This is the traditional rule of locus standi. Then there may be persons who have themselves not suffered any loss or damage but claim injury as a member of the public. There may also be persons who are total strangers or "meddlesome interlopers". The Supreme Court with a view to providing easy access to justice to the under privileged segments of society has enlarged the docrine of locus standi by laying down that where legal injury is caused or legal wrong is done to a person or class of persons who, by reason of poverty or disability or socially or economically disadvantaged position cannot approach a court of law for justice, any member of the public or social action group acting bona fide can bring an action seeking judicial redress and this can be done even by addressing a letter to this court. A new jurisdiction, namely "epistolary jurisdiction" has thus been evolved providing relief to the weaker section of the society. The petitioner must, however, not be a mere busy-body, or meddlesome interloper but "must have sufficient interest of his own over and above the general interest of the other members of the public." The Supreme Court in its latest decision in the case of Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 has however, emphasised the need of providing some self imposed restraint on" public interest litigation by laying down guidelines for entertaining such petitions.  Thus in modern society a constant tug of war goes on between competing elite. There is a crisis of value and wholesale cultural up- rooting. The system of law is passing today through a peculiar crisis which is at the same time economic, political, social and evolutionary in character. There is some discernible pattern does indicate that conflicts and re- conciliations play a major role. Social events and the concepts through which these events are understood do bear an intimate connection and whenever there appears a gulf between concepts and events efforts have always been made by social and legal philosophers to review and bridge the same. The idea of evolution gains ground which ultimately leads to the review of basic legal theories. It then becomes incumbent on the science of law to appraise the existing concepts of law, their historic conditionality and causes and to elaborate a strategy for combating social evils with the legal process for the development of a progressive society.  Â

Author Name: Hon’ble Justice T S Misra