Application of Social Research Findings in The Field of Law: Topic

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TOPIC:

APPLICATION OF
SOCIAL RESEARCH
FINDINGS IN THE
FIELD OF LAW
SUBMITTED BY:
HARMANJOT SINGH
190/19
SECTION D
SEMESTER VI

SUBMITTED TO:
Prof. GULSHAN KUMAR
ACKNOWLEDGEMENTS
This is not just a customary acknowledgement of help that I received but a
sincere expression of gratitude to all those who have helped me complete this
project and made it seem apparently more readable than otherwise it would
have been. I am in debt to my faculty Prof. Gulshan Kumar for giving me
such a chance to choose such an interesting project ‘APPLICATION OF
SOCIAL RESEARCH FINDINGS IN THE FIELD OF LAW’ and making
it seem easy by lucidly explaining its various aspects. I would like to thank
her for guiding me in doing all sorts of researches, suggestions and having
discussions regarding my project topic by devoting her precious time.

I thank U.I.L.S for providing Library facilities. And lastly, I thank my friends
and all those persons who have given valuable suggestions pertaining to the
topic and have been a constant source of help and support.

Thanking everyone,

Harmanjot Singh

Roll Number: 190/19

Semester VI
INTRODUCTION
‘Research’, in simple terms, can be defined as ‘systematic investigation
towards increasing the sum of human knowledge’ and as a ‘process’ of
identifying and investigating a ‘fact’ or a ‘problem’ with a view to acquiring
an insight into it or finding an apt solution therefor. An approach becomes
systematic when a researcher follows certain scientific methods.

According to Blackstone, “Law is a rule of conduct, prescribed by the


supreme power in the State, commanding which is right and prohibiting what
is wrong. Jurisprudentially law consists of rules prescribed by the society for
the governance of human conduct”. Law of any civilized country is not
definite, but changes according to the demand and circumstances of the
society. Roger Cotter views “Social change is held to occur only when social
structure - patterns of social relations established social norms and social roles
changes”.

Law not only lays down the norms which are acceptable to a given society, it
also lays down the norms, which the society should adopt in the interest of its
own welfare. The rules or code of conduct which a society develops by
experience shapes into law for the sake of uniformity, consistency,
performance and sanction. An acceptable norm thus becomes a law. The
departure there from is condemned as crime in criminal law but civil law
becomes a code of conduct regulating the society.
In this context, legal research may be defined as ‘systematic’ finding law on a
particular point and making advancement in the science of law. However, the
finding law is not so easy. It involves a systematic search of legal materials,
statutory, subsidiary and judicial pronouncements. For making advancement
in the science of law, one needs to go into the ‘underlying principles or
reasons of the law’. These activities warrant a systematic approach. An
approach becomes systematic when a researcher follows scientific method.

Generally, law is influenced by the prevailing social values and ethos. Most of
the times, law also attempts to mould or change the existing social values and
attitudes. Such a complex nature of law and its operation require systematic
approach to the ‘understanding’ of ‘law’ and its ‘operational facets’. A
systematic investigation into these aspects of law helps in knowing the
existing and emerging legislative policies, laws, their social relevance and
efficacy, etc.

In this backdrop, the present course on Legal Research Methods intends to


acquaint the students of law with scientific methods of inquiry into law. It
also intends to make them familiar with nature, scope, and significance of
legal research. In addition, it endeavours to make them aware of role of legal
research in the development of law and legal institutions, in particular and
socio-economic development of the country in general.
With these objectives, the course addresses to sources, categories and types of
legal research. It focuses on legal research methods and tools. It highlights
different dimensions and tools of doctrinal legal research as well as non-
doctrinal legal research or socio-legal research. In other words, the course
strives to instil in the law student’s basic skill of identifying research
problems, planning and executing legal research projects and of appreciating
the problems associated therewith. It aims at instilling in them basic research
skills so that they can plan and pursue legal and socio-legal research in future .

LAW AND SOCIETY: MUTUAL RELATIONSHIP & INTERACTION

Law does not operate in a vacuum. It has to reflect social values, attitudes and
behaviour. Societal values and norms, directly or indirectly, influence law.
Law also endeavours to mould and control these values, attitudes and
behavioural patterns so that they flow in a proper channel. It attempts either to
support the social system or to change the prevalent social situation or
relationship by its formal processes. Law also influences other parts of the
social system. Law, therefore, can be perceived as symbolizing the public
affirmation of social facts and norms as well as means of social control and an
instrument of social change.1

1
1 See, Lawrence M Friedmann and Steward Macaulay, Law and Behavioral Science (Bobbs-Merrill Co, Inc,
Indianapolis, 1969), Roscoe Pound, Jurisprudence, vol 2 (St Paul, Minn., West Publishing Co., USA), and Sir
Carleton Kemp Allen, Law in the Making (Oxford, London, 7th edn, 1964) chap IV On Legislation.
Commenting on the interrelationship between law and society, Luhman
observed:

“All collective human life is directly or indirectly shaped by law.


Law is, like knowledge, an essential and all-pervasive fact of the social
condition. No area of life-whether it is the family or the religious community,
scientific research is the internal network of political parties-can find a
lasting social order that is not based on law ---. A minimum amount of legal
orientation is indispensable everywhere.”2

Such a complex nature of law and its operation require systematic approach to
the ‘understanding’ of ‘law’ and its ‘operational facets’. A systematic
investigation into these aspects of law helps in knowing the existing and
emerging legislative policies, laws, and their social relevance. It also enables
to assess efficacy of law as an instrument of socio-economic changes and to
identify bottlenecks, if any. Law, thus, has a social context. Law without its
social context is simply a noteworthy mental exercise. ‘Law without social
content or significance is law without flesh, blood or bowels.3

MWe can add some more specific areas of socio-legal research, such as,
Directive principles of Constitution of India and effect of their
implementation; Criminal tendency in some tribes and sections in India; Tax
imposition and social change; International Economic Law and the increase of
international trade; White-collar crimes and their impact on society; Labour
laws and the welfare of the working classes; Land Reform Acts and the social
2
Luhman, Sociological Theory of Law (1972, English Translation, 1985) at 1, cited in, 50 MLR 686 (1987).
3
S P Simpson & Ruth Field, Law and the Social Sciences, 32 Va L Rev 862 (1946).
and economic change; Provision of contributions to political parties in
Company Law and its implications; Sex offences and their effect on social
life; Feeble-mindedness and criminality; Relationship between physical
anomalies and crime tendency; Effects of customs of society on crime rate;
Alcoholism and crime rate; Urbanisation and increase of crime rate;
Contribution of motion pictures and T.V. programmes to delinquency and
crime; Effects of bribery on efficiency of administration; Preventive detention
and public opinion; Efficiency of police department and crime rate; Condition
of under-trial criminals in jails; Effects of punishment and need for reforms;
Delay in trials and its effect on judicial administration; Abolition of death
sentence and its desirability; Prison reforms in treating the prisoners;
Protection to tenants under Rent Control Law. The list is endless and many
more can be added to it.

NECESSITY OF CHANGING THE LAW

Indian judiciary has generally been found to be alive to the needs of social
thinking. The courts have brought and their fresh implications and added new
dimensions to the law. As rightly quoted by Justice P N Bhagawati “It is the
judge who infuses life blood into the dry skeleton provided by the legislature
and creates a living organism appropriate and adequate to meet the needs of
the society”. To show the instrumentality of law on social change, it is
necessary to study some special changes that have taken place in India,
because nothing is permanent but change is permanent.

Foresight of framers of Indian constitution

Law should not be definite but must transform according to the requirement
and necessity of the society arising out of passing of time. It is this foresight
in mind father and main architect of the Indian Constitution Dr. Bhim Rao
Ambedkar inserted Art 368 to the constitution which provides that “Any part
of the constitution may be amended by adopting appropriate procedure except
destroying the basic structure of the constitution”. It reflects the acceptance of
the need of changing the law even the law of the land when situation
warrants.

FEW ARE THE EXAMPLES THAT LAW HAS BEEN EVOLVED


WITH THE CHANGES IN THE SOCIETY:

 FEMALE INFANTICIDE
A study on the implementation of the Infanticide Act demonstrates that this
particular legislation was a purposive legislation which has positive and
negative sanctions, along with effective administrative mechanism, which led
to substantial decrease in female infanticide practice. This could very well
being understood as use of law as an instrument of social control.

The Supreme Court has also played a pivotal role as an institution of social
change by the liberal and proactive interpretation of the constitutional
provisions. From the sociological jurisprudence Supreme Court of India has
played an important role in the social transformation with providing access to
justice being made available to the masses. To conclude the researcher is of
the opinion that it is only through the instrument of law the social changes can
be effectively brought out and implemented thus empowering the masses.

 PROHIBITION OF CHILD MARRIAGE

This practice of child marriage was vehemently seen in Indian society across
various religious communities. Tough attempts were made by many reformers
it turned futile until a law was enacted. The Hindu Child Marriage Restraint
Act was substituted by the prohibition of Child Marriage Act 2006. It
introduced child marriage prohibition of Child Marriage Act 2006. It
introduced child marriage prohibition officer and extended the power of
family court to decide the matter under the act. The act also enhanced the
punishment upto two years rigorous imprisonment or with fine upto 2 lakhs or
with both.
 ELIMINATION OF CHILD LABOUR

Preventing a child from enjoying his childhood is a grave crime. The


Factories Act 1881 was the first one of its kind to prohibit employment of
child below the age of 7years and working hours were limited. Very many
legislations were made and finally we have Child Labour (Prohibition and
Regulation) Act 1986 which generalizes the age of child upto 14 years for the
purpose of prohibition of child labour. The Act has also listed 17 prohibited
occupations and 65 processes in Schedules A & B.

 RIGHT TO INFORMATION

For Effective Governance It is best and landmark instruments of law


regarding social change which started in 1975, when the honourable Supreme
Court upheld that freedom of speech and expression includes the right to
know every public act done in a public way by their public functionaries.
Right to know is implicit in right of free speech and expression and disclosure
of information regarding functioning of the government must be the rule. The
Right to Information Act of 2005 has proved to be a strong legislation with
good teeth because of effective implementation of the Act.

 PUBLIC INTEREST LITIGATION

The Honourable Supreme Court has adopted the broader approach of the rule
of locus standi to utilize the initiative and deal the public-spirited persons to
move the courts to act for the general or group interest even though they may
not be directly injured in their rights. The most important fact regarding PIL is
that of relaxing the locus standi concept, any public spirited person can
approach the constitutional courts and could bring to the courts notice of
blatant violations of Fundamental Rights of people who are not capable of
being approaching the courts themselves. PIL is a concept aimed at increasing
the accessibility to justice and forms a part of constitutional jurisprudence in
India.

 RIGHT TO INFORMATION (FOR EFFECTIVE


GOVERNANCE)

It is best and landmark instruments of law regarding social change which


started in 1975, when the honourable Supreme Court upheld that freedom of
speech and expression includes the right to know every public act done in a
public way by their public functionaries. Right to know is implicit in right of
free speech and expression and disclosure of information regarding
functioning of the government must be the rule. The Right to Information Act
of 2005 has proved to be a strong legislation with good teeth because of
effective implementation of the Act.

 WIDOWS REMARRIAGE

The Hindu society prevented remarriage of widows in order to protect their


family's honour and property. It was the efforts of Ishwar Chandra vidyasagar
who urged British to pass a legislation allowing Hindu women to remarry. In
pursuance of this The Hindu Widow Remarriage Act was passed in 1856.
Legalising the remarriage of Hindu widows and to provide legal safeguards
against loss of certain forms of inheritance for remarrying a Hindu widow.
Thus, it empowered a Hindu widow to live a life.
 RIGHT TO FREE AND COMPULSORY EDUCATION

In 1992 the honourable Supreme Court declared the right to free and
compulsory education as a fundamental right in the ambit of 'Right to Life'
under Art 21 of the constitution. In 2002 the constitution was amended by
inserting Article 21A to implement the right to free and compulsory education
of every child aged between 6 – 14 years and inserted fundamental duties of
parent and guardian. In 2010 The Right of Children to Free and Compulsory
Education Act 2009 was put in force with effect from 1st April to provide free
and compulsory education from 1 to 8th standard to every child. Thus, it can
be seen that law protects the life of the children.
CONCLUSION

The researcher concludes that social problems are interconnected rather than
isolated and law is a mirror to know how people are related to one another.
Effective implementation of law as an instrument or device of social change
should work in tandem with social and cultural life of people of India.
Transformation of social system according to the need of the times and in
accordance with the modes and mores of the people is a matter of necessity. A
striking balance between instrumentality of law and folkways and mores of
the people would really pave way for real justice in action and thus leads to
empowerment of the society.
REFERENCES

BOOKS:

1. Malik & Raval “Law and Social Transformation in India, Allahabad


Law Agency, Fourth Edition 2014.|
2. Sir William Blackstone, commentaries on the Laws of England, 9th
Edition, Printed for W.Strahan, T. Cadwell in strand, and D.Prince,
Oxford, 1783pages 38-62.
3. Kothari, C R, Research Methodology: Methods and Techniques
(Wishwa Prakashan, New Delhi, 1990).

WEBSITES:

1.https://legodesk.com/legopedia/types-of-legal-research/
2.https://www.mylawman.co.in/2020/05/law-notes-legal-research-types-
and.html

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