| LAW AS AN INSTRUMENT OF SOCIAL CHANGE BY PRAVEEN DALAL* The aim of this article is to put forward the true nature and purpose of the law. The need for this article has arisen because for every minor new situation we start crying for the change in the law. In a country which is facing the problem of “poverty”, “unemployment”, “starvation”, etc, it is not a wise idea to agitate again and again for every minute discomfort by invoking the “legislative machinery’ of the country. The time, money and resources spent on these “unproductive initiatives” should be used for productive purposes only. These “unpredictable changes” only reflect the “priority” of the governing force of India. I. Introduction The law regulates the social interests, arbitrates conflicting claims and demands security of persons and property of the people and is an essential function of the state. It could be achieved through instrumentality of law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of the law, which must be achieved by imposing appropriate sentence. Therefore, law as a corner stone of the edifice of “order” should meet the challenges confronting the society. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment[1]. The law in order to be legitimate and legal must also satisfy the mandates of the Constitution of India. The Constitution of India is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed as that they can understand and appreciate it. The more they understand it the more they love it and the more they prize it. It is really the poor, starved and mindless millions who need the court’s protection for securing to themselves the enjoyment of Human Rights[2]. The Constitution precedents cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face the death and destruction[3]. Then, neither the court nor the Constitution will save the country[4]. The Constitution, unlike other Acts, is intended to provide an enduring paramount law and a basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a long lapse of ages. It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future. It contains a framework of mechanism for resolution of constitutional disputes. It also embeds its ideals of establishing an egalitarian social order to accord socio-economic and political justice to all sections of the society assuring dignity of person and to integrate a united social order assuring every citizen fundamental rights assured in part III and the directives in part IV of the Constitution. In the interpretation of the Constitution, words of width are both a framework of concepts and means to achieve the goals in the preamble. Concepts may keep changing to expand and elongate the rights. Constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth. The intention of the Constitution is, rather, to outline principles than to engrave details. Thus, law should sub serve social purpose. Judge must be a jurist endowed with the legislator's wisdom, historian's search for truth, prophet’s vision, and capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. The judge must also bear in mind that social legislation is not a document for fastidious dialects but a means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable of expanding freedoms of the people and the legal order can, weighed with utmost equal care, be made to provide the underpinning of the highly inequitable social order[5]. In this background we will discuss the “need” of amending the Information Technology Act, 2000(Act). II. The need of change The Act has been enacted “primarily” to deal with e-governance and e-commerce. The “legislature” was, however, cautious and wise enough to incorporate provisions dealing with “contraventions” and “offences” using the information technology. A “Constitutionally ideal amendment initiative” must consider the following aspects: (a) Nature of amendment: The concept of “indepth review” suggests that the present Act is “improper” rather than “imperfect”. The stress seems to be on “complete change’ rather than “necessary minor modifications”. This is a wrong strategy that has unfortunately been adopted by the government. (b) Need of amendment: The need of amendment is not based on “germane reasons” but is primarily guided by the recent “MMS controversy”. The law is meant for the “People of India” and not for any particular “segment”. The most embarrassing moment of the Indian Legal System was not the “ arrest” of the CEO of the Bazee.com but the “interference of the USA in the sovereign governance of India”. It must be noted that the managing of e-commerce business requires certain safeguards to be followed by those who are deriving benefits out of it. If these ‘minimum safeguards” are not followed than the law will take it very seriously. The “rule of law” does not recognise any appeal of a “foreign country” or “domestic pressures”. Thus, the amendment of the Act must be guided by germane reasons only and it should not be based on irrelevant, arbitrary, unreasonable and extraneous considerations. (c) Areas of amendment: The law exists to serve the needs of the society, which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, ‘Then I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool." The law must, therefore, in a changing society march in tune with the changed ideas and ideologies[6]. At this stage the words of Justice Bhagwati in the case of National Textiles Workers Union v P.R.Ramakrishnan[7] need to be set out. They are: “ We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind[8]. The Act require amendment to fill in the following “grey area” on a priority basis: (i) The “right to information” as flowing out of Article 19(1)(a) pf the Constitution, (ii) The “right to know” as flowing out of Article 21 of the Constitution, (iii) The “right to privacy” as flowing out of Article 21 of the Constitution, (iv) The need of protecting the “electronic data property”. The “paper based data property” can be sufficiently protected by the Indian Copyright Act, 1957, (v) The need of providing a “sound e-governance base” that should include effective e-justice administration facilities[9], (vi) The need for providing a more stronger e-commerce base, (vii) The need to strengthen the “Internet Banking” infrastructure, (viii) The need to strengthen the “ Cyber Insurance Business infrastructure”, (ix) The need to protect people of India from “Cyber Terrorism” in India[10], (x) The need of adoption of the “techniques of aggressive defence” in India[11], etc. These are the issues that need an immediate attention of the “legislature” and not other “self serving changes” which will leave the Act more vulnerable to “unconstitutionality”. (d) Place of amendment: One of the thriving needs of change is in the field of “cyber forensic”. The Act, however, is not the right “place” to make the change. In India we have both “substantive” and “procedural” laws. The Indian Penal Code and Information Technology Act are “substantive laws” whereas the Indian Evidence Act and Criminal Procedure Code are “procedural laws”. Thus, the inter-mingling of procedural laws into substantive laws is not a desirable exercise. This mandates the amendment of the “Evidence Act” rather the “Information Technology Act”. (e) Ancillary matters: The ancillary matters like “cyber-café regulations”, “blocking of web-sites”, etc are not the fit subject for “amendment”. As far as the regulation of the cyber-café is concerned, the respective “State Governments” can do so through “notification method”. Similarly, the authority for the blocking of web sites has already been constituted under the provisions of the Act; hence duplicating the efforts and wasting the valuable resources will serve no useful purpose. If these areas are “ignored” either in the zeal of amendment process or due to pressure tactics, then the law in this regard would be a “remedy worst than the malady” hence its amendment should not be undertaken at any cost. If such an amendment were proceeded with, then it would definitely be tested on the touchstone of the provisions of Constitution of India and will not survive the test of “constitutionality”. III. Alternative strategy The cumbersome, time consuming and expensive process can be avoided by issuing “simple notifications” by the government that will clear the mist surrounding the present atmosphere. Similarly, since the matter is before the court the same can also be taken care by the courts in India. Legislatures are not best fitted for the role of adapting the law to the necessities of the time, for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society[12]. Thus, Courts in India can provide a much better solution to this situation by adopting the “purposive and updating modes of interpretation’ of the provisions of the Act. It is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law[13]. IV. Conclusion The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade, that decision cannot be allowed to operate[14]. Any decision of the government ignoring these “mandates” will be declared to be unconstitutional, no matter how much pressure is put on it. © Praveen Dalal. All rights reserved with the author. * Consultant and Advocate, Delhi High Court [1] State of M.P v G.Singh, AIR 2003 SC 3191. |
Sunday 18 March 2012
LAW AS AN INSTRUMENT OF SOCIAL CHANGE
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