Sociological Jurisprudence and Social Change:

Tracing the role of Supreme Court of India

Tarun Jain1

Table of Contents

Introduction to the sociological jurisprudential thought .............................................................. 1

Sociological school summerised................................................................................................ 3
What sociologists say on social change .................................................................................... 7
Role of Supreme Court in social change ................................................................................... 9
(a) Backward classes and their protection........................................................................ 12
(b) Abolition of Untouchability........................................................................................... 14
(c) Standing for the dignity of bonded labour.................................................................... 16
(d) Upholding the dignity of women .................................................................................. 17
(e) Standing for the progress of nation: Bank Nationalisation permitted........................... 20
(f) Standing tall for the welfare of the child ....................................................................... 21
(g) Other specific instances .............................................................................................. 23
Conclusion............................................................................................................................... 27

Introduction to the sociological jurisprudential thought

The jurisprudence of conceptions, in which new situations are to be met always

by deduction from old principles and the criticism of premises with reference to

the ends to be sub-served is neglected. In the pursuit of principles there is a

tendency to forget that law is a practical matter. The desire for formal perfection

seizes upon jurists. Justice in concrete cases ceases to be their aim. Instead,

they aim at thorough development of the logical content of established principles

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 through rigid deduction, seeking thereby a certainty with shall permit judicial

decisions to be predicted in detail with absolute assurance.2

Thus criticizes Roscoe Pound at the traditional and narrow minded positive interpretation of

jurisprudence in the sense of interpretation of law. To him, sociological jurisprudence aimed to

"enable and compel law-making, and also interpretation and application of legal rules, to take

more account, and more intelligent account of the social facts upon which law must proceed

and to which it is to be applied."3 Accordingly, sociological jurists believe that abstract notions

of rights should not bind judges. Instead, judges should consider the public interest and

modern social conditions or "social facts" when interpreting the Constitution. Advocates of

sociological jurisprudence also argued that the rule of law itself would sometimes need to be

sacrificed to extralegal concerns.4 Sociological jurists believed that courts should consider

public opinion when interpreting the Constitution because such opinion represented the

evolving social mores of the community.5

While sociological jurisprudence ultimately came to be associated with legal Progressivism, its

underlying rationale did not inherently require judicial deference to the legislature.6 It is for this

reason that judiciary is understood to be playing a very major role in bring about the reform in

the society to which the sociologists refer to as social change. The general thrust of

2
Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24 Harv. L. Rev. 591 (1911) at 596.
3
Ibid. He continues to hold, (T)he sociological jurists stand for what has been called equitable application of law;
that is, they conceive of the legal rule as a general guide to the judge, leading him toward the just result, but insist
that within wide limits he should be free to deal with the individual case, so as to meet the demands of justice
between the parties and accord with the general reason of ordinary men. Id. at 597
4
Pound, Justice According to Law, 13 Colum. L. Rev. 696 (1913) at 706. Also see, Benjamin N. Cardozo, The
Nature of the Judicial Process, p. 65 (1921).
5
N.E.H. Hull, Reconstructing the Origins of Realistic Jurisprudence: A Prequel to the Llewellyn-Pound Exchange
over Legal Realism, 1989 Duke L.J. 1302 at 1307-08.
6
Roscoe Pound, Sociology of Law and Sociological Jurisprudence, 5 U. Toronto L.J. 1, 2-3 (1943)

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sociological jurisprudence that the "positive law cannot be understood apart from the social

norms of the 'living law" is perhaps an appreciation and acknowledge of the fact that law being

meant for the society, has to be ingrained and evolved through a legal system which keeps

close contact with the developments taking place in the society and acts accordingly towards

the change.7

Sociological jurists find a greater thrust in their arguments as law has a binding force which

exceeds any such proportion that which any other means of social control can only envisage.

Thus, the punitive content, which is suo moto carried along with the enforcement of law and is

declared to be inflicted upon its non compliance, brings about greater cohesiveness in the

masses on account of the fact that its only seeks them to do what is the positive general trend

of the society. Thus law as an instrument of social change also finds a great approval, even if

we seem to brush aside the argument of the sociological school for a second that law is to be

understood in the social context. As, even if a law is once made in isolation to the societal

position, the moment it acts in the context of and towards the accomplishment of social

change, it automatically obtains the desired social content in it that is necessary for it to act as

an instrument for furtherance of social progress through social change.

Sociological school summerised

Sociological jurisprudence was first defined in 1911 in a law review article by Roscoe Pound. It

rebelled against the formal jurisprudence that had dominated the nation's legal community

since the Civil War. While formal jurisprudence used deductive logic to reason from assumed

principles to holdings in specific cases, sociological jurisprudence advocated the use of the

7
In his work titled The Science Of Sociological Jurisprudence As A Methodology For Legal Analysis, the author
has beautifully analysed as to how to use sociological methodology, as which goes to the core of the sociological
school, for legal analysis. (Richard Langone, The Science Of Sociological Jurisprudence As A Methodology For
Legal Analysis, 17 Touro L. Rev. 769 (2001)

3
social sciences to develop legal rules and argued for more flexible legal rules to allow

individual judges freedom to do justice in individual cases. By the 1930s, advocates of this new

jurisprudence had begun to change the methodology of the Supreme Court. Jurists such as

Justices Holmes, Brandeis, Cardozo, and Stone began to discard formal jurisprudence and to

explicitly consider and balance the social interests at stake in their decisions.

Characteristic of formal jurisprudence was the use of means-ends analysis, which was used

not to consider the actual effects of a law, but to determine the law's purpose. Formal jurists

considered this purpose to be the law's nature and by knowing the true nature of the law, they

could then determine its validity without considering its effects.

The growth in American jurisprudence helps us to understand the sociological school greatly.

In the late nineteenth century, two schools of constitutional jurisprudence began to emerge.

The first school can be described as "traditional. This school believed that the Constitution

had a fixed meaning and that the judiciary's role was to serve as an elitist institution that limits

popularly controlled legislatures from exceeding constitutional boundaries. The competing

school of constitutional thought was the progenitor of sociological jurisprudence, which

believed that social science and public mores should be weighed heavily in constitutional

adjudication and ultimately advocated extreme judicial deference to legislative enactments.

Sociological jurisprudence holds that the purpose of law is to achieve social aims, and that

legal rules, including constitutional rules, cannot be deduced from first principles. Accordingly,

sociological jurisprudence believed abstract notions of rights should not bind judges.

Sociological jurisprudence also believed that judges should not strictly rely on traditional

analytical tools such as analysis of the Framers' intent, natural rights, or precedent when

deciding constitutional cases with social import. Instead, judges should consider the public

4
interest and modern social conditions or "social facts" when interpreting the Constitution.8

In stark contrast to traditional theories that relied on immutable principles such as natural

rights, sociological jurisprudence depended on the theory that law was tied to the evolving

nature of society because society determined people's rights. Sociological jurisprudence

believed that courts should consider public opinion when interpreting the Constitution because

such opinion represented the evolving social mores of the community. Justice Benjamin N.

Cardozo, in his famous work entitled The Nature of the Judicial Process posited that judges

legislate "interstitially" when charting the course of the common law. He believed a value

judgment is behind every decision that could be decided either way based on the precedents.

Cardozo argued that whenever possible, it is the judge's duty to repress his or her own

subjective values and apply the values and mores of the community at large when choosing

which course to follow. He said that judges must think like legislators. And he called upon the

legal profession to employ the methods of sociology to objectively determine the values and

mores of the contemporary community that are essential in order for courts to properly decide

cases.

The Austrian-born legal philosopher Eugen Ehrlich, succinctly wrote "the center of gravity of

legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in

society itself."9

Ehrlich argued against law as "a body of legal propositions" and put forward that "the inner

order of the associations of human beings is not only the original, but also, down to the present

8
Louis D. Brandeis, The Living Law, 10 Ill. L. Rev. 463, 467 (1916), quoted by David E. Bernstein, in his work
titled Philip Sober Controlling Philip Drunk: Buchanan V. Warley In Historical Perspective, presented in a
Colloquium on Rethinking Buchanan v. Warley, published at, 51 Vand. L. Rev. 797.
9
E. Ehrlich, Fundamental Principles of the Sociology of Law (437) (Transl. W.L. Moll, Harvard University Press,
1936) ("Ehrlich").

5
time, the basic form of law." To understand law, one must understand the actual relations and

associations within the society. For Ehrlich, law is social, not individual. He expressed the need

to remove law from purely positivist and academic considerations eloquently;

Every social and economic change causes a change in the law, and it is

impossible to change the legal bases of society and of economic life without

bringing about a correspondence change in the law. If the changes in the law are

arbitrary and of such a nature that the economic institutions cannot adapt

themselves to them, the order of the latter is destroyed without compensation.

Pound as a "sociological jurist" was among those who argued that law could not be analyzed

in isolation, and that jurisprudence was not a "pure" science. Rather, law as a science must be

studied in conjunction with other disciplines: The "program" of sociological jurists, then,

accommodates some or all of the following: (1) study of actual social effects of legal

institutions, precepts and doctrines; (2) sociological study in preparation for lawmaking; (3)

study of means of making legal precepts effective in action; (4) study of judicial process and

ideals; (5) sociological legal history (including effect of laws on society); (6) recognition of

importance of just solutions of individual cases; (7) a ministry of justice in common-law

countries; and (8) "the end, towards which the foregoing points are but some of the means, is

to make effort more effective in achieving the purposes of the legal order.10

Sociological jurisprudence does not mean, and has never been used to argue, that positive or

natural law propositions have no validity. Nor does it confuse "ought" concepts with "is"

concepts. It does not seek to be prescriptive. Rather, the concept of "living law" injects into the

10
Pound, I Jurisprudence 347-358 (1959). Also see, Erwin N. Griswold, Roscoe Pound -- 1870-1964, 78 Harv. L.
Rev. 4; Julius Stone, Roscoe Pound and Sociological Jurisprudence, 78 Harv. L. Rev. 1578; Julius Stone, Book
Review of Pounds Jurisprudence (5 volumes), 75 Harv. L. Rev. 1240; Arthur E. Sutherland, One Man in His
Time, 78 Harv. L. Rev. 7; Erwin N. Griswold, Intellect and Spirit, 81 Harv. L. Rev. 292.

6
analysis a flexibility that, like legal realism, views law in the context of times and

circumstances, and allows courts to consider such issues. In fact, scholars of Pound's

sociological jurisprudence saw the ultimate authority of law originating in the value of law as a

mechanism to secure social interests.11

What sociologists say on social change

The term social change is used to indicate the changes that take place in human interactions

and interrelations. Society is a web of relationships and social change obviously means a

change in the system of social relationships where, a social relationship is understood in terms

of social processes and social interactions and social organisations. Thus, the term social

change is used to desirable variations in social interaction, social processes and social

organisation. It includes alterations in the structure and the functions of the society.12

Various sociologists define social change in their own terms. They are;

M.E. Jones: Social change is a term used to describe variations in, or modifications of,

any aspect of social processes, social pattern, social interaction or social organisation.

Kingsley Davis: By social change is meant only such alterations as occur in social

organisations, that is, structure and functions of society.

Majumdar: Social Change may be defined as a new fashion or mode, either modifying

or replacing the old, in the life of a people or in the operation of society.

MacIver and Page: Social Change refers to a process responsive to many types of

change in the manmade conditions of life; to changes in the attitudes and beliefs of

man, and to the changes that go beyond the human control to the biological and the

11
R. Pound, Jurisprudence vol. 1 292 (1959).
12
C.N. Shankar Rao, Sociology: Primary Principles, 484, (S. Chand & Co., New Delhi, 2002)

7
 physical control of things.

Thus we find that the understanding of the sociologists, in relating to social change, is primarily

upon change in human relationships, as viewed from a societal viewpoint and includes any

such change which affects the structure or the organisation of the society. Noted sociologist

Max Weber observes that social action is a form of human conduct consisting of an internal or

external attitude which is expressed by acting or refraining from action. It is action when man

assigns a certain meaning to his conduct and the action is social when, by the meaning he

gives it relates to the behaviour of other persons and is oriented towards their behaviour.13

Therefore, we find that social change is a type of social action, as Weber observes, and is

meant to redirect the present opiniated views of the general masses comprising the society,

towards another belief of thought and action, for an affirmatively or tacitly defined policy or

programme.

Another noted sociologist M.N. Srinivas14 opines that Sanskritization, Westernization, caste

mobility, secularization, the change in value structure that the country has witnessed, etc. can

be seen as the examples of social change. Thus we find that a rejuvenation in the social

structure, a revisitation to the cultural, social and the psychological relationship patterns of the

people of a nation, an upheaval in the societal thoughts etc. are the broad touchstones which

make us aware of the changing trends in the society or in other words, social change.

13
Max Weber, Theory of Social and Economic Organisation, 88, (Glencoe, Free Press, 1947) cited by Arvind
Agrawal, Max Weber and Modern Sociological Theories, 180, (Rawat Publications, Jaipur, 2000)
14
M.V. Srinivas, Social Change in modern India, (Orient Longman Ltd., New Delhi, 1995); see also Yogendra
Singh, Social Change in India: Crisis and Resilience, (Har Anand Publication Pvt. Ltd., New Delhi, 2001). The
latter author cites the examples of economic development and changing family system, the national integration
process, social stratification as examples of social change in the country. He also, in a separate chapter,
illustrates how law has aided social change in India.

8
Yogendra Singh15 in an attempt to correlate law and social change, views law as an agent of

modernization and social change. He contemplates law as an indicator of the nature of societal

complexity, and its attendant problems of integration. He primarily goes back to the plans of

Bentham as of an ideal society and how his opinions and expressions have come to be

embedded in the typical Indian lifestyle that serves as an example of social change in the

country. Further, the reinforcement of our belief in the age old panchayat system (through legal

means as for example the 73rd Amendment to the Constitution, establishing a platform for

panchayat raj to spurt up), the abolition of the abhorable practices of untouchability, child

marriage, sati etc. are typical illustrations of social change being brought about in the country

through law.

In this attempt to analyse the opinion of the sociologists, we find that they do recognise law as

an effective medium or agency, instrumental in bringing about social change in the country or

in any region in particular. And thus, we rejuvenate our belief that law has been pivotal in

introducing changes in the societal structure and relationships and continues to be so.

Role of Supreme Court in social change

The case of Ashok Kumar Gupta & Ors. v. State of U.P. & Ors.16 and the observations made

therein are pivotal to determine the understanding of the Court as to social change. The case

related to challenge made against the promotion of certain respondents in the Public Works

Department of the State of U.P. It is not the outcome of the case that is pertinent for our

analysis but the obiter of the Court made to justify the stand it took while protecting the

deprived and the underprivileged.

15
Id. at 105 to 127; see also T.K. Oommen and C.N. Venugopal, Sociology for law students, (Eastern Book
Company, New Delhi, 2000)
16
(1997) 5 SCC 201

9
The Court observed,

it is but the duty of the Court to supply vitality, blood and flesh, to balance the

competing rights by interpreting the principles, to the language or the words

contained in the living and organic Constitution, broadly and liberally. The judicial

function of the Court, thereby, is to build up, by judicial statesmanship and

judicial review, smooth social change under rule of law with a continuity of the

past to meet the dominant needs and aspirations of the present. This Court, as

sentinel on the qui vive, has been invested with more freedom, in the

interpretation of the Constitution than in the interpretation of other laws. This

Court, therefore, is not bound to accept an interpretation which retards the

progress or impedes social integration; it adopts such interpretation which would

bring about the ideals set down in the Preamble of the Constitution aided by Part

III and IV - a truism meaningful and a living reality to all sections of the society as

a whole by making available the rights to social justice and economic

empowerment to the weaker sections, and by preventing injustice to them.

Protective discrimination is an armour to realise distributive justice. Keeping the

above perspective in the backdrop of our consideration, let us broach whether

the rights of the employees belonging to the general category are violative of

Article 14; inconsistent with and derogatory to right to equality and are void ab

initio. (emphasis supplied)

In the instant case, the Court cited the observation of a Constitution Bench in Union of India &

Anr. v. Reghubir Singh17, wherein it was held that

17
(1989) 2 SCC 754 at 766

10
 like all principles evolved by man for the regulation of the social order, the

doctrine of binding precedent is circumscribed in its government by perceptible

limitations, limitations, arising by reference to the need for re-adjustment in a

changing society, a re-adjustment of legal norms demanded by a changed social

context. This need for adapting the law to new urges in society brings home that

truth that the life of the law has not been logic, but it has been experienced. The

law is forever adopting new principles from life at one end and "sloughing off" old

ones at the other. The choice is between competing legal propositions rather

than by the operation of logic upon existing legal propositions that the growth of

law tends to be determined. Interpretation of the Constitution is a continuous

process. The concepts engraved therein keep changing with the demands of

changing needs and time.

Thus it can be that the Court realises its importance and role in determining the growth of the

society and having realised its importance, the Court further perceives the importance of taking

into account the aspects of the social conduct and the experience of the ages while

determining new norms.

However, having observed the views of the Court, one must remember that this idea mooted

by the Court has to be ingrained in its functioning and its approach to the cases before it and

must be reflected from its decisions. A mere expository declaration to this regard will not

suffice the purpose nor will accomplish the objective. Thus the approach followed thereon is

not to analyse what the Honble apex Court has stated on its role or duty towards social

progress but to examine, with critical precision, the decisions that it has meted and how far

they have influenced and have been instrumental in bringing about social change in the

11
country.

The approach adopted from herein is to examine a specific aspect of change, either introduced

or affirmed by the Court, in exhaustive detail. The aim is to take different classes of society in a

specific category and observe the role of the Court in their promotion of development wherein

the classes here formed represent those weaker and downtrodden sections of the society

which have withstood oppression and suffering at the hands of the powerful sections. Thus the

approach discounts to examination of each specific class separately, figuring out the role of the

Court in adequate safeguard and protection.

(a) Backward classes and their protection

An area, which has faced huge litigation and continues to be controversial with a continuous

tussle between the so called upward and the backward classes, has witnesses changing

trends of the Court. While earlier the Supreme Court believed in a literal interpretation of the

Constitution, devoid from practical realities, later on, in an advent to secure the devices meant

for the upliftment of the backward class, the Supreme Court turned assumed a proactive role

for itself and stood tall for their protection and the trend continues to be there today as well.

The case of State of Madras v. Champakam Dorairajan18 reflects the earliest ideology of the

Supreme Court in this regard. The Communal Government Order of 1951, which provided for

reservation in Medical Colleges on lines of caste, was challenged in this case as being

violative of fundamental right under Article 15(1) and Article 29(2) wherein the right not to be

discriminated in government admissions on multifarious considerations was guaranteed. The

Court did not agree to the justification given by the State that Article 46, as a directive principle,

mandated the state to make provisions for the promotion of the educational and economic

18
AIR 1951 SC 226

12
interests of the Scheduled Castes and Scheduled Tribes. The Court opined that being a

directive principle, Article 46 could not override the fundamental rights under Article 15 and 29

and therefore, the Government Order was declared ultra vires the Constitution.

Therein, thus, the Court took a positivist stand and ensured that the backward classes were

not promoted at the cost of the other well to do classes. The opinion of a seven judge bench,

however, was otherwise when the issue of reservation was again before them in the illustrious

case of Indra Sawhney v. Union of India19 wherein the concept of reservation was not only

validated but in fact was permitted upto 50% i.e. the fact that half of all the government seats

and posts could be set aside for a portion of population not more than 15% of the entire

population of country, was approved by the Court.20 Thus the zeal to bring about parity in the

people, both in terms of opportunity and also instilling the ability to exploit the opportunity

(especially to the vulnerable and the destitute) made the Court think in terms of applying the

pull up theory when push up theory was already at work under the Constitution.

The present trend is that even if there is one post that is sought to be filled and the

Government applies 40 point Roster (which provides for reservation and manner in which the

post is to be filled) in filling that post, which may even amount to 100% reservation and total

exclusion of the General category, it is not considered to be violative of Article 14.21 In fact, the

19
AIR 1993 SC 477
20
Though the limit of 50% of the total seats was not prescribed for the first time in this case and the Court merely
approved the decision of a Constitutional bench in M.R. Balaji v. State of Mysore (AIR 1963 SC 649) yet the case
of Indra Sawhney is significant as the Court was herein called upon to look into the validity of the concept of
reservation at all.
21
In Union of India v. Madhav (1997) 2 SCC 332, the Court held that, even though there is a single post, if the
Government has applied the rule of rotation and the roster point to the vacancies that had arisen in the single
point post and were sought to be filled up by the candidate belonging to the reserved categories at the point on
which they are eligible to be considered, such a rule is not violative of Article 16(1) of the Constitution.

13
right to reservation was declared to be a fundamental right by the Supreme Court in the case

of State of Kerala v. N.M. Thomas.22

Thus the intent of the Court to ensure the upheaval of the backwards can be evenly witnessed.

(b) Abolition of Untouchability

Article 17 of the Constitution abolishes untouchability. This has been done to castrate the

stigma and disgrace that was cast upon on a particular section of the society merely because

they were a deprived lot and were assigned the most abhorable work of the society.23 The

provision adopted here sought to end an age old practice which had found an almost

permanent place in the highly indoctrinated Indian society.

Nevertheless, though the Constitution prohibited untouchability in any form, its enforcement

was not an easy task. In a recent case24, the question which arose before the Supreme Court

was, whether the appointment of a person, who is not a Malayala Brahmin, as "Santhikaran" or

Poojari (Priest) of the Temple in question Kongorpilly Neerikode Siva Temple at Alangad

Village in Ernakulam District, Kerala State, is violative of the constitutional and statutory rights

of the appellant. It was contended that only Namboodri Brahmins alone were allowed to

perform poojas or daily rituals by entering into the Sanctum Sanctorum of Temples in Kerala,

particularly the Temple in question, and that had been the religious practice and usage all

along and that such a custom cannot be thrown over by the Travancore Devaswom Board,

which was responsible for the administration of the Temple.

22
(1976) 2 SCC 310
23
The Untouchability (Offences) Act, 1955 in fact merely furthered the intent of the Constitutional framers to put
an end to this obnoxious practice, by providing punishment and adding teeth to the Constitutional provision in this
regard.
24
N. Adithayan v. Travancore Devaswom Board & Ors., AIR 2002 SC 3538; see also Ashok Kumar Gupta & Ors.
v. State of U.P. & Ors. (1997) 5 SCC 201 wherein the Court observed that untouchability in any form had to be
prohibited.

14
However, the Court observed that distinction based on caste could not be allowed to permeate

in the social fabric of the society as far as everyday working was concerned. Since

worshipping in a temple had become a secular aspect, in this case, the Petitioner could not

contend that becoming a pujari in the temple was an exclusive right of a particular class

because people belonging to other class were not permitted in the temple, a practice which

was already abolished by Article 17 and positively established as under Article 25. Thus the

Court reaffirmed its stand that discrimination of any sort, amounting to untouchability would not

be tolerated in any form, express or implied.

In a similar case wherein, a complaint was filed that the respondent obstructed the Harijans

from taking water from the well as they were "Mahras" and that there was a separate well for

them, saying that if the Harijans insist on taking water the result would be unhappy but the

same was dismissed the High Court in appeal, the Supreme Court observed that, under Article

17 of the Constitution and also under the Protection of Civil Rights Act, 1955, the thrust was to

liberate the society from blind and ritualistic adherence and traditional beliefs which lost all

legal or moral basis and further seeks to establishment new ideal for the society and in

interpreting the Act, the judge should be cognigent to and always keep at the back of his mind

the constitutional goals and the purpose of the act and should interpret the provisions in the

light to an annihilate, untouchability and to afford to the Dalits and Tribes right to equality,

social integration and fraternity. Therefore the Court concluded that where the Harijans were

stopped from taking water from well on the round of their being untouchable, the offence under

Section 4 of Protection of Civil Rights Act, 1955 was clearly made out.25

25
Registering the plight of the dalits, K. Ramaswamy, J. observed,
Poverty and penury made the Dalits as dependants and became vulnerable to oppression. The
slightest attempt to assert equality or its perceived exercise receives the ire of the dominant
sections of the society and the Dalits would become the object of atrocities and oppression. The

15
(c) Standing for the dignity of bonded labour

The concern of the Court for the protection of the destitute and the have-not can be firmly

witnessed in Bandhowa Mukti Morcha v. Union of India26 wherein the Court observed,

The strict adherence to the adversarial procedure can some times lead to

injustice, particularly when the parties are not evenly balanced in social or

economic strength. Where one of the parties to a litigation belongs to a poor and

deprived section of the community and does not possess adequate social and

material resources, he is bound to be at a disadvantage as against a strong and

powerful opponent under the adversary system of justice, because of his difficulty

in getting competent legal representation and more than anything else, his inability

to produce relevant evidence before the court. Therefore, when the poor come

before the court, particularly for enforcement of their fundamental rights, it is

necessary to depart from the adversarial procedure and to evolve a new procedure

which will make it possible for the poor and the weak to bring the necessary

material before the court for the purpose of securing enforcement of their

fundamental rights. If the adversarial procedure is truly followed in their case, they

would never be able to enforce their fundamental rights and the result would be

nothing but a mockery of the Constitution. Therefore the Courts should abandon

the laissez faire approach in the judicial process particularly where it involves a

lack of resources made the Dalits vulnerable to economic and social boycott. Their abject poverty
and dependence on the upper classes in Rural Indian for livelihood stands a constant constraint to
exercise their rights --social, legal or constitutional, though guaranteed. Thus they have neither
money, capacity, influence nor means to vindicate their rights except occasional collective action
which would be defeated or flittered away by pressures through diverse forms. Consequently most
of the Dalits are continuing to languish under the yoke of the practice of untouchability. The State
has the duty to protect them and render social justice to them. (para 16 of the judgment)
26
AIR 1984 SC 802

16
 question of enforcement of fundamental rights and forge new tools, devise new

methods and adopt new strategies for the purpose of making fundamental rights

meaningful for the large masses of people.

Thus the Court was relentless in stating that it would not be bound by any technicality or

devise and in fact could go beyond the fetters imposed by an adversarial system of

adjudication if that was so required in order to ensure justice to the people.

(d) Upholding the dignity of women

Further, in C.B. Muthamma v. Union of India27 wherein Rule 8(2) of the Indian Foreign

Services (Conduct & Discipline) Rules, 1961, required a women member of the Indian Foreign

Services to resign from the service if the Government was satisfied that her family and

domestic commitments were likely to come in the way of due and effective discharge of her

duties was declared as illegal and unconstitutional. The Court observed,

We do not mean to universalize or dogmatize that men and women are equal in

all occupations and all situations and do not exclude the need to pragmatise where

the requirements of particular employment, the sensitivities of sex or the

peculiarities of societal sectors or the handicaps of either sex may compel

selectivity. But save where the differentiation is demonstrable, the rule of equality

must govern.

Thus it can be stated with definitive that the Court has always played a pro-active role in

standing for bringing about a social change and here, standing for the rights and the dignity of

the women, the Court in categorical terms held that it would not permit differentiation unless

found essential in the facts of the case.

27
(1979) 4 SCC 260

17
In similar circumstances, in AIR India v. Nargesh Mirza28 the Court declared Air India

Regulation 46(i)(c) which provided for the services of the Air Hostesses to stand terminated on

first pregnancy, as violative of Article 14 as it sought to discriminate only on grounds of sex. In

categorical terms the Court observed,

the provision according to which the services of Air Hostesses would stand

terminated on first pregnancy is not only manifestly unreasonable and arbitrary

but contains the quality of unfairness and exhibits naked despotism and is,

therefore, clearly violative of Article 14 of the Constitution. It amounts to

compelling the Hostesses not to have any children and thus interfere with and

divert the ordinary course of human nature. By making pregnancy as a bar to

continuance of ordinary course of Air Hostess, the Corporation seems to have

made an individualized approach to a womens physical capacity to continue her

employment even after pregnancy which undoubtly is a most unreasonable

approach.

The termination of the services of an Air Hostess under such circumstances is

not only a callous and cruel act but an open insult to Indian womanhood the most

sacrosanct and cherished institution. Such a course of action is extremely

detestable and abhorrent to the notions of a civilized society. Apart from being

grossly unethical it smacks of a deep rooted sense of utter selfishness at the cost

of all human values. Such a provision, therefore, is not only manifestly

unreasonable and arbitrary but contains the quality of unfairness and exhibits the

28
(1981) 4 SCC 335

18
 quality of unfairness and exhibits naked despotism and is, therefore, violative of

Article 14

Standing for the protection of the first legally married wives, the Court in Sarla Mudgal v. Union

of India29 reaffirmed that marriage celebrated under a particular personal law cannot be

dissolved by application of another personal law to which one of the spouses converts and the

other refuses to do so. It further declared that a marriage could only be dissolved by a decree

of divorce on the ground mentioned under Section 13 of Hindu Marriage Act and would

continue to subsist after the husband having converted to Islam and any second marriage after

conversion would be an offence under Section 494 IPC.

Further, in case of Neeru Mathur v. LIC30 wherein the Petitioner applied for the post of

Assistant in LIC and was successful in both written and interview tests, she was asked to fill a

declaration form which was duly submitted upon being examined by a lady doctor she found

medically fit for the job. She was discharged from service when she applied for a maternity

leave. The Corporation contended that she was so removed as she gave a wrong declaration

wherein she was required to give the dates of her last menstruation cycle, if the menstrual

periods always been regular and painless, the number of conceptions that have taken place

and other personal details. In these circumstances, the Court observed that there was no

material to show that her work was not satisfactory and simply because she gave a wrong

declaration, she could not removed especially when the declaration was indeed embarrassing

if not humiliating and the modesty and self-respect may perhaps preclude the disclosure of

29
(1995) 3 SCC 635
30
(1992) 1 SCC 286

19
such personal problems by the Petitioner and thus the concern of the Court for the equilateral

treatment of women can be duly observed.31

(e) Standing for the progress of nation: Bank Nationalisation permitted

Expressing unbridled faith in the Constitution and primarily responsible for providing it with the

necessary impetus to render it a living document, the Supreme Court has seems to have

adopted a progressive and pro-active role in for the nations cause. It has been in this regard

that when ever the need has arisen for us to change, we have and in fact that has been

supported by the Court. Thus, declining to adopt a positivist approach32 in cases wherein the

progress of the national was of utmost priority, the Court in R.C. Cooper v. Union of India33 or

what is better known as the Bank Nationalisation Case, the Court permitted nationalisation of

public banks.

31
However it is pertinent to observe that the Court has taken a somewhat liberal stand in its concern for the
dignity of the women when in State of Maharashtra v. Christian Community Welfare Council of India (2004 Cri LJ
14 (SC)), Court reversed the decision of the Bombay High Court and held that in case a women constables was
not available and it was essential to do so, male constables could arrest female accused.
32
Though the infamous case of ADM Jabalpur v. Shiv Kant Shukla (1976) 2 SCC 521 is a classic example
wherein the Court seems to have been gripped with the positivist approach of law as expounded by Austin and
Bentham.
33
AIR 1970 SC 564 wherein the Court not only permitted the Central Government to acquire and undertake
certain banking companies but also held that there no was not violation of the fundamental right of the petitioner
by such acquisition. The Court, holding such, observed,
Each freedom has different dimensions or facets. Article 19(1)(f) enunciates the right to acquire,
hold and dispose of property and clause (5) of Article 19 authorizes imposition of restrictions upon
the right Limitations prescribed for ensuring due exercise of the authority of the State to
deprive a person of his property and of the power to compulsorily acquire his property are,
therefore, specific classes of limitations on the right to property falling within Article 19(1)(f).
Property may be compulsorily acquired only for a public purpose. Where the law provides for
compulsory acquisition of property for a public purpose it may be presumed that the acquisition or
the law relating thereto imposes a reasonable restriction in the interest of the general public If
property is compulsorily acquired for a public purpose, and the law satisfies the requirements of
Articles 31(2) and 31(2-A), the Court may readily presume that by the acquisition a reasonable
restriction on the exercise of the right to hold property is imposed in the interests of the general
public. But that is not because the claim to plead infringement of the fundamental right under
Article 19(1)(f) does not avail the owner; it is because the acquisition imposes a permissible
restriction on the right of the owner of the property compulsorily acquired. (para 51-55)

20
(f) Standing tall for the welfare of the child

Preventing the youth of the nation from falling prey to exploitation, the Supreme Court has

played a proactive role in changing their position from a weak and unaware stand to a

strengthened one. In Labourers Working on Salal Hydro Project v. State of Jammu and

Kashmir34 the Court directed that whenever the Central government undertakes a construction

project, which is likely to last of a considerable period of time, it should ensure that children of

the construction workers who are living at or near the project site are given facilities for

schooling. The court also specified that this maybe done either by the central government itself

or if the central government entrusts the project work or any part thereof to a contractor,

necessary provision to this effect may be made in the contract with the contractor.

Further, in case of Sheela Barse v. Secretary, Children Aid Society35 the Supreme Court

observed, if there be no proper course of children of today, the future of the country will be

dark. It is the obligation of every generation to bring up children who will be citizens of

tomorrow who will hold the countrys banner high and maintain the prestige of the national. If

the child goes wrong for want of proper attention, training and guidance, it will indeed be a

deficiency of the society and of the government of the day. A problem child is indeed a

negative factor. Every society must, therefore, devote full attention to ensure that children are

properly cared for and brought up in proper atmosphere where they could receive adequate

training, education and guidance in order that they may be able to have their rightful place in

the society when they grow up.

34
1983 Lab IC 542
35
(1987) 3 SCC 50

21
However, contrary to this judgment, in M.C. Mehta v. State of Tamil Nadu36 the Court allowed

children to work in a prohibited occupation such as manufacture of fireworks. According the

Ranganath Mishra J. and M. H. Kania J, the provisions of Article 45 in the Directive Principles

of State Policy still remain a far cry and, though according to this provision all children upto the

age of 14 years are supposed to be in the school, economic necessity forces grown up

children to seek employment. Children can, therefore, be employed in the process of packing

but packing should be done in an area away from the place of manufacture to avoid exposure

to an accident.

Nevertheless, rectifying to some extent its folly under the earlier judgment, the Court in M.C.

Mehta v. State of Tamil Nadu37 can be said to be a progressive advancement in public interest

litigation and child jurisprudence. The decision has attempted to tackle the problem of child

labour. A writ under article 32 was field by Mr. M. C. Gupta contending that the fundamental

rights of the children against exploitation were being grossly violated in match and fireworks

industries in Sivakasi wherein children were employed. The Court therein noted that the

manufacture process of matches and fireworks is hazardous giving rise to accidents including

fatal cases. Therefore, keeping in view the provisions contained in Articles 39(f) and 45 of the

Constitution, it gave directions as to how the quality of life of children employed in the factories

could be improved.

36
(1991) 1 SCC 283
37
AIR 1997 SC 699

22
(g) Other specific instances

It has not been these illustrations alone but there are a lot of other specific instances wherein

the Court seems to have brought in social justice and values to ensure change in the societal

structure and values.

In Jolly George Verghese v. Bank of Cochin38 the Court declared civil imprisonment for non

payment of debt as unconstitutional and thus saved the victims of poverty who were unable to

pay off their debts even when the decree of the Court was executed against them and thus

had no option but to serve the prisons.

In Madhu Kishwar v. State of Bihar39 the Court declared section 7, 8 of the Chhota Nagpur

Tenancy Act, 1908 excluding the female heirs in Scheduled Tribes from inheritance was

declared as unconstitutional and the Court directed the government to reconsider the Act

looking into the feasibility of permitting inheritance to females.

Then, declaring the secular status of the country, the Court granted Muslim women

maintenance under section 125 of the Code of Criminal Procedure also despite their right of

Mehr in the case of Mohd. Ahmed Khan v. Shah Bano Begum40. Though the essence of the

judgment was eroded by the enactment of the Muslim Women (Protection of Rights on

Divorce) Act, 1986 and the rules framed thereunder, yet the progressive role of the Court

bringing equality in despite the religious divide cannot be ignored.

38
AIR 1997 SC 1225
39
(1992) 1 SCC 102
40
(1985) 2 SCC 556; Though it has to be noted here that Bai Tahira v. Ali Hussain Fissalli Chothia (AIR 1979 SC
362) had already set a clear precedent in favour of the maintenance rights of a divorced Muslim woman a couple
of years before the Shah Bano case and although, the substantive legal reasoning of both cases runs parallel to
all intents and purposes, but Bai Tahira caught no attention of the media while Shah Bano not only made it to the
headlines but eventually triggered rioting.

23
An attempt towards social change has been to change the mentality of the traditional Indian

folk that girl child in not a bane to the family as has come to be understood in the present era.

In this regard, the emphasis has been to curb the usage of scientific sex-determining

instruments. The role of the Court has been proactive in the sense that the Court itself ensured

its compliance. If fact notices were given to the Secretary of eleven states for delay its

compliance.41

In Kamalabhai Jethamal v. State of Maharashtra42, the Supreme Court severely condemned

the practice of Bombay Police to employ young men as trap witnesses in order to find out

prostitutes and get them arrested.

In a series of writ petitions on the same issue, brought before the notice of the Court by leading

Jurist Upendra Baxi and Late Ms. Lolita Sarkar, the Supreme Court ensured that the mental

patients at the Agra Protective Home were ensured not only their minimal rights for their

survival but also for a dignified existence. The Court not only directed but also supervised the

implementation of its directions to see to it that its concerns were properly meted out.43

Raising the standards of the people and hitting hard at meaning less traditional beliefs, the

Court in Mohd. Hanif Quareshi v. State of Bihar44 upheld the validity of the Bihar Preservation

and Improvement of Animals Act, 1955 and Uttar Pradesh Prevention of Cow Slaughter Act,

41
SC order on Sex test, The Hindu, January 29, 2002; finally disposed off in Centre for Enquiry Into Health And
Allied Themes (CEHAT) & Others v. Union of India, (AIR 2003 SC 3309) wherein a petition was filed directing the
Union and the State governments to implement the provisions of the Pre-Conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994
42
AIR 1962 SC 1189
43
See Upendra Baxi & Lolita Sarkar v. State of U.P. Writ Petition No. 1900 of 1981; Upendra Baxi & Lolita Sarkar
v. State of U.P. (1983) 2 SCC 308; Upendra Baxi & Lolita Sarkar v. State of U.P. (1986) 4 SCC 106; Upendra
Baxi & Lolita Sarkar v. State of U.P. (1998) 8 SCC 622; Upendra Baxi & Lolita Sarkar v. State of U.P. (1999) 9
SCC 388.
44
AIR 1958 SC 731

24
1955 which sought to prohibit slaughter of cows. The Court justified its decision on the lines of

maintaining public health and standards.

Further, understanding the plight of the workers, the Court in Chandra Bhavan Boarding and

Lodging, Bangalore v. State of Mysore45 held that the provisions of the Minimum Wages Act,

1948 were not arbitrary and in fact had to be sustained in a country like India wherein though

living wage was the target but on account of the general level of the wages in the country and

the industries and also the capacity of the industry to pay, a certain quantum of wages had to

be determined as minimum wages which may sustain the worker in a reasonable manner i.e.

is that wage which is sufficient to cover the bare physical needs of a worker and his family.

Giving fair treatment to the physically challenged persons, the Court in Javed Abidi v. Union of

India & Ors.46 directed the grant of facilities of concession while traveling air same as in train or

bus. Thus the directions were given to Indian Airlines and the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995 was enforced in spirit as

well.

Further, in Samtha v. State of A.P.47 the Court held that right to development was a

fundamental right of the tribal folk and was an essential ingredient of right to live as enshrined

under Article 21. Thus the Court held that additional protection was to be meted to them.

If equality is the fundamental tenet underlying the Constitution than inequality in any form shall

not be tolerated. Having determined to eliminate any form of man made inequality; the Court

45
AIR 1970 SC 2042
46
AIR 1999 SC 512
47
(1997) 8 SCC 191

25
approved the abolition of the privy purses paid to the erstwhile rulers of the independent states

that existed prior to the commencement of the Constitution.48

It was in order to bring about a social change in the country that to enlighten an average Indian

with the antecedents and whereabouts of the candidate who stood for election as the

representative of the masses that the Court passed an order, in PUCL v. Union of India49 that

all those prospective candidates who stood for election to the legislative houses and the

Parliament had to file a declaration along with a list of information on their past record and

other material facts which the Court considered as an essential ingredient of the right to know

of the citizens before casting their determining votes.

While Sociological jurists emphasize on the balancing of the conflicting interests of the

individual, society and the public through the process which Roscoe Pound terms as the

process of social engineering, the same has also been witnessed though the action of the

Supreme Court when, in Vellore Citizens Welfare Forum V. The Union of India50 which is

known as the Tanneries case the Supreme Court observed as The Constitutional and

statutory provisions protect a persons right to fresh air, clean water and pollution-free

environment, but the source of the right is the inalienable common law right of clean

environment. The Court further observed, Our legal system having been founded on the

British Common Law, the right of a person to pollution-free environment is part of the basic

jurisprudence of the land. Thus the Court gave priority of pubic interest over individual

interest.

48
H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior, & Ors. v. Union of India and Anr.,
AIR 1971 SC 530
49
AIR 2002 SC 2112
50
AIR 1986 SC180

26
Conclusion

Rules derived by a process of logical deduction from pre-established

conceptions of contract and obligation have broken down before the slow and

steady and erosive actions of utility and justice. We see the same process at

work in other fields. We no longer interpret contracts with meticulous adherence

to the letter when in conflict with the spirit. We read covenants into them by

implication when we find them in conflict with them instinct with an obligation

imperfectly expressed. The law has outgrown its primitive stage of formalism

when the precise word was the sovereign talisman and every slip was fatal.51

There has been much debate among the foreign jurists whether the norms of

right and useful conduct, the patterns of social welfare, are to be found by the

judge in conformity with an objective or a subjective standard His duty to

declare the law in accordance with reason and justice is seen to be a phase of

his duty to declare it in accordance with custom. It is the customary morality of

right-minded men and women which he is to enforce by his decree.52

The above two paragraphs of J. Cardozo clearly define the progress of the legal system while

also summarising the duty of the judge in the evolution of this social process. The role of the

judge, therefore, to ensure social progress rests undisputed. Evaluating the part played by the

Supreme Court in this role, it goes without saying that the Court have indeed came up to the

occasion almost whenever it was required to interpret and mould social norms and practices in

line with the social aim that it envisaged for the national strata.

51
Benjamin N. Cardozo, The Nature of Judicial Process, 99-100.
52
Id. at 105- 107

27
Much has been said and written in praise of the Court already and the present study also

concludes to confirm that belief to a large extent. However, complacency must not be allowed

to creep in this role of the Court. Our society it yet to achieve a level of tranquillity sufficient to

sustain the national growth in its own volition. A pro-active role of the Court is desired no

doubt, but also it must ensure that it does not cripple the social growth by being the only cause

responsible for the growth. The Court must supplant such vigour which renders the fellowmen

themselves competent to invoke their mental faculties and surpass, vide the aid of morality and

cultural values, the orthodox beliefs which come in way of a spontaneous and self-generating

march towards social change.

Thus, the march of law is clearly in favour of Supreme Court having performed a pro-active

role in social change of the languishing masses. It certainly has acted as a catalyst in the

process of social transformation of people wherein the dilution of caste inequalities, protective

measures for the weak and vulnerable sections, providing for the dignified existence of those

living under unwholesome conditions, etc. are the illustrious examples in this regard. Thus, all

that remains to be said is that though the permutations and circumstance existing at the time of

independence may not exist today but still the Indian society requires a vitalising trigger which

should duly be ensured by the Court from time to time.

28