The Indian Case
Law and Social Change
O Chinnappa Reddy
Political, economic and
social revolutions are taking
place everywhere and there is a great awareness and concern for social policy and human rights. The varied challenges presented compel us to rethink all our theories, dogmas and philosophies. In such an age of change, law cannot hold the allegiance of a dynamic society if it remains a backwater removed from urgent social and political problems. It must respond and fulfil its major task of 'providing an orderly framework' for social change. It must respond to the demands of the present and meet the challenges of the future; it must show an increasing awareness of the great problems of the 'the little men'; it must become an instrument for the realisation of the aspirations of all people. If the law does not respond quickly enough, there is the danger of an end to the principle of Rule of Law. The principle of constitutionalism has been vigorously in question in the last few years and the attack upon it has been persistent, and determined. The choice we may have to make is between the orderly procedure of law and the processes of force which seem so much more swift and effective. The very features of constitutional Government and the Rule of Law are, therefore, involved in the use of Law as an instrument of social change.
Now, there was a time when law was undoubtedly a manifestation of the will of the dominant social class, determined by economic and political motives. The ideals of justice had little to do with law which was often an instrument of oppression. Jhering in his classic work The struggle for law remarked:
Every State punishes those crimes most severely which threaten its own peculiar conditions of existence, while it allows a moderation to prevail in regard to other crimes which, not infrequently presents a very striking contrast to severity as against the former. A theocracy brands blasphemy and idolatry as crimes deserving of death, while it looks upon a boundary violation as a simple misdemeanour (Mosaic law). The agricultural State, on the other hand visits the latter with the severest punishment, while it lets the blasphemer go with the lightest punishment (Old Roman Law). The Commercial State punishes most severely the uttering of false coin, the military State insubordination and breach of official duty the absolute State high treason, the republic striving after regal power; and they all manifest a severity in these points which contrasts greatly with the manner in which they punish other crimes. In short, the reaction of the feeling of legal right, both of States and individuals, is most violent when they feel themselves threatened in the conditions of existence peculiar to them.
'In other words', according to Jhering 'the pressure of the social interest in the general security is a compelling force in law making'. It cannot be doubted that in the past it was true of most legislation and perhaps it is true of much modern legislation. Perhaps Freudian psychologists will tell us that the motive force of modern social welfare legislation is to preserve the status quo in a broad sense and to forge an armour against bloody revolution: pink laws to prevent red revolution. Whatever may be the ultimate validity of such an interpretation, it must also be recognised that there is, now, in the law and in the making of the law, a pervasive social consciousness inspired by a deep sense of justice. Legislators, lawyers and judges are showing an increasing awareness of law as an instrument of social progress. Whether you read the debates in the Parliament or the judgments of the Superior Courts you will find running throughout a golden thread of determined social purpose. Legislators and judges are undoubtedly showing greater sensitivity to social philosophies.
Laws have to be made. Laws have to be interpreted. Laws have to be implemented. The legislature makes the laws, the judiciary interprets them and the executive implements them. Whether law is to be made, interpreted or implemented, the Constitution of India has issued two broad mandates to the Parliament, the Legislatures of the States and to all institutions of the Government: (1) not to take away or abridge certain rights described as fundamental rights and (2) to apply certain principles described as directive principles of State Policy.
Foremost of the Fundamental Rights is, of course, the right to equality before the law and the equal protection of the laws. In particular, discrimination on grounds of religion, race, caste, sex or place of birth is banned and equality of opportunity in matters of public employment is guaranteed. Other Fundamental Rights guaranteed by the Constitution are the right to freedom of expression, the right of assembly and association, of movement, residence and occupation and freedom of religion. No person can be deprived of his life or liberty except in accordance with the law. The controversial right to property was once a Fundamental Right but it is no longer so. These rights called Fundamental Rights are of a peculiarly individual character and are primarily meant to protect individuals against arbitrary State action. They are intended to foster the ideal of a political democracy and are meant to prevent the establishment of authoritarian rule. It is apparent that several of these Fundamental Rights are ordinarily capable of enjoyment only by persons who are already free from want and necessity. They are of little practical value and have no meaning to the hungry and the homeless. It was realised by the Constitution makers that mere adherence to an abstract democratic ideal was not enough and that if the Constitution was to survive, it was necessary to secure to the people's economic and social freedom in addition to political freedom. And so, the Directive Principles came to be enunciated in the Constitution. To the vast mass of humanity in India there can be no doubt that the Elective Principles of State Policy are far more important than the Fundamental Rights. The Directive Principles, it is announced in the Constitution are to be fundamental in the governance of the country and the State is directed to apply the Directive Principles in making the laws. The Directive Principles enjoin the State to promote the welfare of the people by securing and protecting a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State is enjoined to secure to every citizen the right to work, the right to equal pay for equal work, the right to an adequate means of livelihood, the right to education and the right to public assistance in cases of unemployment, old age and sickness. The State is also enjoined to secure just and humane conditions of work and the health and strength of workers and to prevent the exploitation of children. The State is further directed to prevent concentration of wealth and means of production and to secure by suitable economic reorganisation a living wage and a decent standard of life to all workers; agricultural, industrial or otherwise.
Consistently with the Directive Principles of State Policy, it is the responsibility and the function of the Legislature to enact substantive social policy into law. The Legislature has the advantage that it can take the initiative and not wait until the swell of public opinion compels it to make laws introducing social change. True, in a democratic system it is not possible to impose a law on a hostile community. The failure of the prohibition laws in the past is an illustration in point. It does not, however, mean that the climate of favourable public opinion is a condition precedent to the introduction of law aimed to bring about social change, though a favourable climate is sure to be a great advantage in achieving the goal of the legislation. But, if one were to wait for a favourable climate one may wait, for ever, in vain. It is, therefore, necessary to take the bull by the horns. And, it is not every legislation that will be received in the same hostile fashion as the prohibition laws were in the past.
How is the legislature to set about the task of making laws aimed at bringing about social change? Should legislation aimed at social change be left to the chance initiative of a small group of individuals in a position to mould official opinion or to the operation of pressure groups interested in bringing about sporadic changes. It must be obvious that neither small groups or dedicated individuals nor pressure groups can give a proper lead. "No dynamic society can remould its law to meet the needs of its own growth without an effective legislative procedure".
The task of legislators is to discover and to determine social evolutionary trends by assessing the various social forces that they meet, to intervene and to direct decisively the material life of the people towards a planned goal. They have vast fact finding resources at hand. In fact the very plenitude of material makes the task of recognition of trends difficult. Therefore, if a legislator means business as a social technician who through the mechanics of the law fries to shape the social evolution, he must have the necessary expertise, or lacking it, he must take the assistance and guidance of expert bodies, social and economic research organisations whose business should be the study of trends, the study of attitude and objectives, the exploration of known problems and the discovery of new social problems wherever they exist before they make themselves felt. Any such research organisation has necessarily to be large and must divide itself into multiple units according to the necessities of the situation. The method of research, again, should not be to merely survey foreign legal systems and borrow the social and economic legislations from advanced western countries or merely to send out questionnaires to a few chosen elitist members of the public. Social legislations which may suit advanced western countries are far from ideal for developing countries. It is also common experience that answers given to questionnaires are often casual and superficial. Something which goes deeper and which is more scientific is necessary. The methodology of research to promote social legislation is itself a subject which requires serious thought. That is a matter upon which experts alone should pronounce and not laymen like me. A permanent social research organisation of the nature described should be in constant communication with the Legislature through a House Committee to which it may be attached and to which it must be responsible. There are Committees like Public Accounts Committee, Privileges Committee, Subordinate Legislation Committee, and so on. Why not a House Committee for Social and Economic Legislation and for implementing Directive Principles? Such a Committee in my opinion is an absolute necessity. In fact, a single House Committee may not be enough. Several House Committees each dealing with different subjects may be necessary, since there is no dearth of subjects requiring the attention of the Legislature. These Committees, utilising the expertise and guidance of the research organisations attached to them and working in close collaboration with parallel Committees or units of the Law Commission and Planning Commission, should suggest and should have the freedom to introduce laws to further the Directive Principles and to bring about other social and economic changes. Appropriate legislative procedures must be devised towards this end.
Some legislations are destroyed in utility before they are properly enacted. The long period of legislative gestation, often results in ineffective legislation. For example, the time lag between legislative proposals for land reform and their enactment have enabled big landlords to successfully evade the legislation and to defeat the very purpose of laws designed to prescribe ceiling on landholdings and redistribution of land. A spate of fictitious transfers, sales, benami transactions, partitions and even divorces have taken place throughout the country and legislation has been circumvented. Note what was said by a Full Bench of the High Court of Andhra Pradesh:
In 1961, the Andhra Pradesh Legislature passed the Andhra Pradesh (Ceiling on Agricultural Holdings) Act, 1961. The Act proved ineffective and did not serve the purpose for which it was designed. So, in 1973, with much flourish and fanfare, the Andhra Pradesh Legislature passed the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1 of 1973, claimed to be more effective than its predecessor. The Act was preceded by Act 13 of 1972 and earlier by an Ordinance dated 2-5-1972 banning alienation of agricultural land. Though Act 1 of 1973 was passed with much attendant publicity on 1-1-1973, it came into force only on 1-1-1975, the date notified by the State Government under S.I (3) of the Act. Very soon the constitutional validity of the Act was impeached on several grounds. A full Bench of this Court upheld the validity of the Act in M Venkata Rao Vs State of Andhra Pradesh, (AIR 1975 Andhra Pradesh 315). Despite the fact that the judgment of this Court was rendered on 11-4-1975, there has been considerable delay in the implementation of the Act and the weaker sections of the people, whose hopes were raised and to whom many promises were made by the Act, have yet, in most cases, to reap the promised benefits.
It is, therefore, imperative that new legislative procedures are evolved to eleminate legislative delays.
The vast majority of our laws are addressed to millions of common men, and are made for their benefit. So Legislature must make the laws so that they may be understood by common men and Courts must interpret the laws as they would be understood by common men. Yet one has only to glance at our statute book and the law Reports to see that neither the Legislatures nor the Courts do so. Legislatures appear to have a fascination to make laws in the same stilted language on which lawyers (and, judges) seem so much to thrive. They seem to delight in using a style and in employing words and expressions which ordinary citizens can understand only with the assistance of lawyers. Any ordinary litigant hearing his case being argued in Court on a point of law will wonder whether it is his case that is being argued. Why should legislators, lawyers and judges cease to speak the language of the people when they speak law or of the law? Why should laws be accessible only to lawyers and inaccessible to laymen? It is as if there is a conspiracy between legislators and lawyers to make laws in the quaint language of the Courts, making it difficult for ordinary people to understand the laws enacted for their benefit. The understanding of the laws is made the monopoly of the lawyers and judges, and a barrier, a professional barrier, is created between the Courts and the people. This must change. The language of the law must be liberated from legalism and formalism and the habit of using antiquated, uncommon, legalistic, formal words must be abandoned and a conscious effort must be made to use a style of speech which will reach everyone. Not until this is done can there be any conscious and creative participation of the people in the administration of justice? In India we suffer from the additional handicap that the statutes are made and judgments are written in an alien language. The time for change is fast approaching. When the change comes let our lawyers and legislators remember the 'law-consumers'. Let us not have highly Sanskritised versions of statutes. Let us have statutes in simple, clear, concise and elegant language, be it Hindi or Tamil or Telugu, which is fit to be introduced for study into ordinary schools.
What are the principles of interpretation which should guide a judge if the judiciary is to keep pace with the vast changes that are taking place, outside the Courts? The time has long since arrived for Judges to undertake a search for the discovery of new principles to meet new situations and to creatively apply old principles.
The question of interpretation may be broadly divided into the interpretation of the Constitution and the interpretation of statutes. The interpretation of the Constitution constantly brings up conflicts of social principles but so much has been said and written about the Constitution and its interpretation that I will, refrain from saying more on the subject than to repeat what I am ever fond of saying, namely, that the Directive Principles of State Policy is the guide book and charter for interpreting the Constitution. I only wish to add that the recent decisions of the Supreme Court in Maneka Gandhi's case and Ranganatha Reddy's case have opened wider horizons of Constitutional interpretation. In Maneka Gandhi's case, the Supreme Court held that Article 21 did not exclude Articles 14 and 19, that a law depriving a citizen of his life or liberty and defining a procedure for it had also to satisfy the demands of Articles 14 and 19 and therefore, any such law could not be arbitrary, unfair or unreasonable. Procedural fairness was thus read into the fundamental right of life and liberty guaranteed by Article 21. Not only does the decision rejuvenate the withering Article 21 which had been mauled first by Gopalan's case and almost fatally by Shivkant Shukla's case, the decision appears to be a forerunner to holding generally that 'fairplay in action' is a guarantee flowing from Articles 14 and 19. In Ranganatha Reddy's case the Court had given a call for active progressive interpretation observing, "We have been guided by the thought that an all-too-large gap between the law and public needs, arising out of narrow notions, must be bridged by broadening the Constitutional concepts to suit the changing social consciousness of the emerging Welfare State. Institutional crises and confrontations can be and should be avoided by evolving a progressive interpretation, discarding oversensitivity to undervaluation when private property is taken for public good "...Legalism has to yield when spacious issues arise". The Court decided that "distribution of material resources of the Community" fully covers nationalisation of the means of production as well as the goods produced. The effect of the decision may be far reaching enough to sound a practical death-knell to the Right to Property which is no longer a Fundamental Right. Let us see how the Courts will go ahead.
The primary task of any interpreter of a statute is to ascertain the intention of those whose words are to be interpreted. Where the words are clear and unambiguous the words speak for themselves and since the words must have spoken as clearly to the Judges it may be presumed that the Legislature intended what the words plainly say. But, there are occasions when the plain meaning of the words may not convey and may even defeat the intention of the legislature. That should not be permitted to happen. It is a matter for consideration of the Judges whether law and its interpretation should not be freed from the tyranny of words and whether it is right to abandon the discovery of legislative intent on the ground that the words are clear. Let us not add the tyranny of words to the other tyrannies of the world.
Several generations ago Plowden, as if anticipating the modern trend enunciated the rule of construction: "The intent of statutes is more to be regarded and pursued than the precise letter of them.... and the best way to construe an act of Parliament is according to the intent rather than according to the words.... Each law consists of two parts, viz., of body and soul: the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law… "When the words of a Statute enact one thing, they enact all other things which are in the like decree". This rule of construction enunciated by Plowden, suggests that statutory provisions may be extended to situations, which although they do not fall within the language of the statute do fall within the general principle or social purpose envisaged by the statute. Roscoe Pound recommended the same rule and called it construction by analogy.
There are several other rules of interpretation now in vogue which appear to have outlived their utility. For example, there is the rule of interpretation which says that expropriatory measures should be strictly construed. This rule has sometimes been drawn upon by the Courts to construe social welfare measures. For instance, the Supreme Court in Hutchi Gounder vs Ricobdas Tathaimull (AIR 1965 SC 577) described the Madras Agriculturists Relief Act as an expropriatory measure and so construed it. Similarly in Kanaiyalal Chanchilal Monim vs Indumati Potder (AIR 1958 SC 445), the Supreme Court described the Bombay Rents Hotel and Lodging House Rates Control Act as a measure which interfered with the landlord's freedom of action and held that the Act should be construed strictly. I can give you several instances where tenancy legislations have been cut in size by the interpretation of Courts based on the so-called strict rule of construction. This so-called strict rule of construction appears to be wholly misplaced in the context of Welfare legislation and the sooner it is abandoned the better. Measures which are ameliorative and which are meant to carry out social reforms must be interpreted by the judiciary with a view to further the object of the legislature and not on the theory of alleged interference with vested rights. In fairness I must say that Courts have already been doing this though occasionally some Judges do hark back it the so-called rule of strict construction.
In the case of Taxing statutes again, outmoded view points and principles of interpretation persist. The courts appear to view tax avoidance with affection and go to the extent of saying that it is perfectly open for persons to evade income-tax if they can do so legally. This attitude has to change. The Judicial smile must freeze into a judicial frown. Tax avoidance is unethical for the simple reason that it transfers the burden of tax liability to the shoulders of the guileless good citizens from those of the 'artful dodgers'. In the matter of interpretation, the judiciary persistently applies the principle that fiscal statutes must be construed strictly. That must change. A new judicial attitude must emerge in keeping with the emergence of a new social philosophy that the financial needs of the modern welfare States, if backed by the law, have to be respected and met, that there is behind taxation laws as much moral sanction as behind any other welfare, legislation and that avoidance of taxation stands in no way on a moral level better than other economic crime.
In the case of penal statutes again Courts are inclined to import the requirement of mens rea into economic and social offences. Mens rea was considered to be an essential ingredient of a common law offence. When statutory offences were created in the 18th and 19th centuries, English common lawyers and judges who grudged the growth of statute law evolved a rule of construction that statutes should not be presumed to make any alteration in the common law and that words of statutes should be constructed in a manner agreeable to the rules of common law. An application of that rule was the principle that there was no presumption that mens rea was not an ingredient of a statutory offence. This principle underwent transformation in the hands of judges and it came to be presumed that mens rea was an essential ingredient of a statutory offence unless excluded expressly or by necessary implication. It may be a sound rule to apply where traditional crime is given statutory form or where a new crime is added to the general criminal law; but it should have no application to offences created by modern social, industrial and economic legislation, conceived in the general interests of the community and not for protecting the individual rights of person and property. Modern statutes deal with such subjects as the protection of public health and safety by preventing adulteration of food and sale of noxious and spurious drugs etc.. the prevention of profiteering and corruption, the preservation of internal and external economy, the prevention of exploitation of human beings, the organisation of trade and industry, the extermination of race, colour and religious hatred etc. If these laws are to be enforced the principle of absolute liability must be accepted. One factor worthy of rememberance is that the class of persons against whom sanctions are imposed by modern, social and economic legislation are generally well informed persons, well able to take care of themselves, 'who inspired by cupidity, often device manifold, clever and ingenious methods of avoiding the law'. There is no need to be over solicitous about them.
In India all offences are statutory. There is no question of reconciling the common law with the statutory law. The mental element making up an offence is ordinarily defined by the statute itself. General exceptions are formulated in the Indian Penal Code and they apply to offences under the Penal Code as well as to all other statutory offences. In such a situation there appears to be little reason to incorporate the English common law principle regarding mens rea into the definition of statutory offences. The whole question of mens rea and its applicability to statutory offences in India requires to be reviewed and the principle of absolute liability must be adopted in the case of offences created by modern economic and social legislation.
Finally there is the question of implementation. As earlier mentioned legislatures may make law with all the goodwill in the world but often the legislations merely exist on paper or they are never properly worked and fully utilised. Making of laws is not enough if laws are allowed to be sabotaged by the apathy of those entrusted with the task of implementing them. The Legislature must be vigilant and must make a periodical review of the working of an Act and pull up a tardy executive whenever it is necessary. Unless this is done there can never be any progress and laws will remain laws on paper. I have never yet heard of a debate in Parliament or in a State Legislature reviewing the working of an Act. Parliament and State Legislature must set apart some of their time for this purpose. Better still there should be a permanent House Committee which may be called the Preliminary Evaluation Committee to scrutinize and study the progress made under each enactment, to evaluate the work done and submit periodic report to the Legislature pointing out the lacunae and the defects so that the Legislature may then remedy the situation.
Linked with the questions of Legislation and implementation is the problem of Subordinate Legislation. The desire to attain the objective of securing 'social, economic and political justice' necessarily results in intense activity in the legislative and the executive fields. Unable to deal with matters of detail, the Legislature is too often content to lay down the guidelines and leave the details to be worked out by expert executives. It may perhaps be said that in recent years subordinate legislation has grown in geometrical progression to legislation as such. With the growth of subordinate legislation has grown the possibility of abuse in the making of such subordinate legislation, not because of any evil design on the part of the executive but because of the well known tendency on the part of the executive to get on with the job without any possible interference. In fact a well intentioned executive armed with power may turn out to be the most arbitrary of men. There is thus a danger of the expert executives becoming masters of the people they are employed to serve. There is an even greater danger of indifferently made delegated legislation wrecking parent legislation as effectively as by design. We are quite familiar with such delegated legislation. So it is necessary for the Legislature to control the executive and 'laying before the Legislature' is one of the devices by which such control is exercised. But that is hardly enough. The rules laid before the legislature are hardly ever looked at by the legislature.
It is imperative that a better procedure of Parliamentary supervision should be devised.
In the matter of implementation of statutes the most important problem is that legal assistance, a striking feature of our judicial system is that it serves only those that come to it and pay for it. One must seek justice. It does not come to him unsought because in the existing system Courts do not render justice unsought. Can this and should this not be remedied? Most of the laws which are intended to benefit the weaker sections of the society hardly benefit them for the simple reason that they are either ignorant of their rights or they are not in a position to take advantage of them. Take for example, the Agriculturists' Relief of Indebtedness Act, the Andhra Tenancy Act and the Andhra Pradesh Indebted Agriculturists, Landless Labourers and Artisans (Temporary Relief) Ordinance. Though the Agriculturists' Relief of Indebtedness Act has been on the statute book for nearly forty years how many people belonging to the weaker sections of the society have taken advantage of it? Have they not all these years been paying interest at rates much higher, perhaps three times or four times, than the rates prescribed by the statute? Have not thousands of families been ruined or come very near ruin on that account? The Andhra Tenancy Act prescribes the minimum period of a lease as six years. Notwithstanding the legislation one has only to go to any village to discover that most of the leases are for one year or two years. Without doubt, the rural folk, particularly those whom it is intended to benefit, have not heard of the Andhra Pradesh Indebted Agricularturists, Landless Labourers and Artisans (Temporary Relief) Ordinance. When an offence is committed the police investigate into it, the State takes up the case and the Public Prosecutor prosecutes the offender. When social crimes such as levy of high rate of interest and unreasonable eviction of tenants are committed no one takes up the cause of victims belonging to the weaker sections of the people. No one helps them to bring the cases to Court and so the cases never come to Court. In fact, in ninety nine cases out of a hundred, the victim does not know his own rights. In some cases even if he knows his rights, he cannot afford to go to a Court because he cannot afford to pay the Court fee and the lawyer's fee. What purpose do these laws serve if they don't benefit the people they are intended to benefit? What is the solution? I have a suggestion. Is it not possible to have a Legal Procurator for each taluk or even a firka with an office and a staff of social investigators whose duty is to go round the rural areas and investigate into the legal requirements of the people, to advise the weaker sections of the people about their legal rights to take up their cases, bring them to Court and fight their battles? Thus, perhaps, the law can be brought to the door of the common man and justice may be done to him unsought. Lawyers may be employed as wholetime, part-time or honorary Legal Procurators and Social Investigators, thereby involving the legal profession directly in the working of progressive legislation and realisation of the goals set out in the Directive Principles of State Policy. This is a suggestion not merely for free legal aid to the poor, it is a suggestion for the effective implementation of all beneficient legislation, for the involvement of the legal profession in the war against poverty and exploitation and for making the legal system relevant to society.
[This is a slightly shortened version of a speech delivered by the author at Osmania University on March 21-22, 1980 and incorporated in a publication, 'Justice O Chinnappa Reddy, A Legend', published by Tarimela Nagireddy Memorial Trust.]
Vol. 46, No. 9, Sep 8 - 14, 2013
Your Comment if any