ENFORCEMENT OF SOCIAL JUSTICE

Social laws can be social laws only if they are of the society, from the society and

for the society. They have relevance in a society only if they are unrevocably concinnous

with everyday lives of its members- in terms of their ken of the laws and its general

acceptance. Social laws that are abstruse and unacceptable to the plebeian are destined to

atrophy because they lack en arriere the inherent mechanism of compelling society to

comply with their writ. It is in this sense, that social laws which are lex non scripta are

indited with the stamp of approbation of the state by popular demand, though the process

from the antipode can be inchoated if their assimilation by the society is assured

through active propagation. The effectiveness of social laws depends entirely on their

assimilation by society and the strength of propagation and publicity that follows the

enactment of the laws. This need of the social laws being balked is the quiddity of the

serious setbacks faced in making certain social laws like the Dowry Prohibition Act or the

Child Marriage Act effective. The enactment of social laws that are intended to accord

primacy to social norms must be preceded by intensive fieldwork to introduce the newell

and make them acceptable to the society and enactment should be resorted to only when

the idea becomes ripe enough to be assimilated by the society because the symbiosis of

social norms and social laws is inseparable. Haste brings definite waste in respect of the

enactment of social laws.

 A kenspeckle feature noted in most social laws is the lack of perspicacity in

definition of the concepts involved. It is an understandable glitch when commonsense

concepts like dowry, labour, discrimination, practice of untouchability, compensation or

even marriage makes the quandary of the commission or noncommission of an offence

wafer-thin and often a matter of opinion based on interpretation of the concepts involved.

Though postliminary amendments to the law based on field experience and

interpretations of the concepts by courts attempt to impale the concepts to a prim form,

the inchoate ambiguity continues to confound the issues in the popular mind, weakening

the credibility of the law itself. The louche spectrum of the impair interpretations of a

concept can turn an offence to innocence and more perniciously, an innocent person into

a criminal according to the predilection of the investigating officer. The subjectivity

involved in understanding the law society. It is for this reason, concepts in social laws

must be formulated with utmost caution.

Another major hurdle in calling social change through law is the failure by the

authors of the laws to clearly comprehend and indite in them the causes and mechanisms

of the immane social evils they intended to contain through the laws themselves. The

abhorred social practices that manifest as social evils are only the external symptoms of

serious malady inveterate in the psyche of the society. Attempts to strike at these skin-

deep symptoms prove infructuous in reaching the malady embedded in the vitals of the

system. Often, the persons comminated by the shallow social laws are simple innocent

plebeians who are caught unawares by the laws while they tread the path laid by their

ancestors by wont or perform acts they consider essential in the existing social
circumstances. The external symptoms, sine dubio, should be fittingly treated if the

malady is to be deracinated with all traces of its existence. However, such approaches are

secondary to the concerted attack on the ingrained malady which forms the cornucopia

of those symptoms. This exigency is generally balked in most social laws. Only a

springe mind with full grasp of the social problems in the circumstances of the existing

situation can indagate and handle levers sine prole to set in motion the laws that can

strike at the core of the social malady. This requires advanced study of these immane

practices and their social backgrounds involving psychological and anthropological

analysis apart from adequate public discussion within the society. Unfortunately, no

enactments of social laws are preceded by such vigorous exercises and the impotency of

the laws to excoriate the social evils are inevitably consectaneous. The laws should

provide the pollicitation of punishing the prime perpetrators of the social injustices

rather than catching secondary or tertiary commis to the commission of the offences.

The glisk of undesirable social practices leading to painful hurtling of laws often

are the consequences of the existing social situations. A poor father of four girls and a

boy in the circumstances of prevalent admissibility of dowry in the social psyche, non

obstante the criminality of the act, cannot but accept dowry for his son to assure a

reasonability contented married life for his daughters even at the risk of being

immanacled as his conscience is clean about accepting the dowry. A person living in a

closed society in a village has no alternative but to practice untouchability against his

conscience to save himself from ostracism unless he is a zealous social reformer prepared

to sacrifice his own interests for the cause. In a competitive business world involving
child labour or meager wages, an attempt by an individual to stand out in compliance to

laws against child labour and low wages is a sure way to close down his enterprise. The

state, in such circumstances, should tackle au fond the social situations that breed such

immane symptoms and the law to be kind and understanding in saving in innocent people

caught in the social clamancy. The scope for corrective and remedial action and

rehabilitation must form an integral part of social laws to avoid the impression about the

social laws as indulging in supererogations to catch trivial slips of everyday life and ergo

popularly abhorred. Effectively orchestrated public education and concomitant vigorous

social service programmes aimed at changing specific social situations that boost

socially unjust practices must form an integral part of every social law.

All social laws must have some postern features incorpsed to make them effective

as vehicles of positive social change in view of the delicate ground the laws cover in their

operation wherein people in their interpersonal relationships are often involved in the

hide and seek game of everyday life. The social offences are both trivial and serious-

trivial in the nature of the acts and serious in the nature of its consequences. It is almost

impossible to demarcate when an act in a given social situation is trivial and when it

attains serious proportions. Also, differences in norms and values and varying sensitivity

and moods further complicate the issue. It is not possible to arrive at a uniform definition

of concepts like harassment, practice of untouchability or compensation as acceptable to

all situations. The laws warrant special accoutrements to counter the nonasuch quailings

e re nata as discussed in the ensuing paragraphs.

 Social injustices are perforce committed by the pollent on weak and hapless

people. In the present argument-oriented judicial system where mother justice takes

sides on the basis of the kind of the lawyer being engaged on the strengths of money and

power, no social law can do justice to the weak and feckless gens de peu who are

misdight and nonpareil to their adversaries for the juste rencontre except in rare obvious

cases non obstante the state sponsored legal aid programmes. The cabal of the versute

gens de condition resorting to social evils necessitates some sui generis safeguards to be

inherent in social laws to make up for the nether social position of the wronged person

and checkmate the malengine and pravity of the powerful. Appropriate amendments to

the Indian Evidence Act to incorpse provisions of sweeping presumptions in social laws

against the accused persons on whom a prime-facie case is made out, with provisions to

prove innocence laying with them, is likely to lessen the ineluctable disabilities of the

oppressed people. Though such presumptions are extant to varying degrees now in some

special laws, the presumptions must be made a toute force in all social laws. Such

presumptions save the wronged persons, from proving the wrong usually done at the

convenience and terms of the powerful guilty person sans evidences in the social

situation under his prise.

The special laws must provide for vicarious liability that suspends over the head

of the social group concerned even though there is no evidence to ineatenate him with

the offence. Such criminal liability on the el patron while it checks him from

encouraging or indirectly fomenting commission of such offences through his acolytes in

the social group, also drives him to prevent those injustices in his group.
 There should be mandatory minimum punishments prescribed in all social laws

so that the laws become inherently mordant, independent of the malicho of the pollent

guilty persons. The social laws should abnegate the behoofs of the anticipatory bail

unless the person against whom a prima facie case is made out satisfies the court about

his innocence. The present queasy trend of prompt anticipatory bails to fugacious social

offenders can be brought under control by this measure.

Each social law must provide ample opportunity for compromise on mutuus

consensus with an in-built raisonne mechanism prescribed to ensure corrective and

remedial measures in fit cases not involving serious guilt where such a compromise is

certain to ameliorate the position of the wronged persons. The penal sections of the

social laws inter alia must provide for huge fines and compensations with provisions to

streamline the fines and compensations for rehabilitation of the victims or their

dependants.

The social nature of the offences in social laws makes witnesses to the offence

who are insiders of the society in most cases, reluctant witnesses for the fear of reprisals

from the society though injustice done to one of them turns their clinamen against the

guilty. A provision and concomitant device in social laws to protect the interests of the

witnesses en revanche to their ready cooperation helps investigation of the social

offences.
 It is rightly said that justice delayed is justice denied. It is strikingly so in social

situations where the exigencies of survival and coexistence and future interests force

the parties generally inter-related to apostatise and bury the past cicatrix, leading to the

weak and oppressed again submitting to the tyranny of the powerful for the sake of

survival. In the circumstances, each social law should prescribe time limits for the

continuation of the investigation and trial. The possibility of summary trails for social

offences also should be probed into and employed as extensively as possible to ensure the

galvanic trial of social offences.

The raison d’etre of social laws is the extirpation of social inequalities and the

establishment of a just society. The telos can be better achieved if the laws are structured

to effect compromises to rehabilitate a bon droit the wronged persons, preceding the

invoking of penal sections in lost cases. The social laws true to their intentions must

seek a device by which every case of social wrong draws the attention of the authority

for frack intervention and on-the–spot solutions which is statutorily binding on both the

parties to avoid the crush of the penal sections.

The device can be made a reality by the constitution of Social Justice Authorities

at taluq levels under a judicial magistrate with a police officer, an officer of the social

welfare department, a prominent lawyer, a representative of local women’s organisations

and a representative of the legal aid board as members. The Authority must work as a

team in the taluq to hear cases of socially unjust practices on the spot and adjudicate

them then and there without resorting to judicial technicalities and adjournments. The
Authority must have an office with a multi-channel telephone working round the clock

with a widely publicised number by dialing which anybody without giving identification

can report socially unjust practices so that the Authority as a team reaches the

destination within twenty-four hours and passes orders on-the-spot on hearing the

concerned parties. The Authority must exercise pernoctation over the process of the

compliances to the orders and pass sentences in cases of default. In such a system, the

address and telephone number of the Authority being known in every village in the

taluq is the clavis of perficient chevisance because then anybody wronged can readily

lodge querimonies for redressal. The approach of the Authority in adjudication must

be that of an adviser or well –wisher rather that that of a government organisation

steeped in technicalities. The Authority should be able to reach every village in the taluq

at least once a month. The leitmotiv behind the set-up is to affect compromises and

rehabilitate victims by levying fines and compensations if necessary.

The administration of social laws is a specialised task requiring specialised skills

in the police force handling the job. The force has to be understanding and circumspect

in its approach though tenacious when circumstances warrant. It should have the right

ken of the social circumstances and their problems with a deep sense of commitment to

social justice. These operators should be kind and devoid of the malfeasance of harsh

police methods and should never forget that they are dealing with distinct problems

which are the outcome of historical reasons and special social situations, that they are

dealing with a wider social malady through the individual symptoms in their hands for

solution and ergo there are no villains in real sense of the term, that they are social
doctors interests only excision of the cancerous growths from society. This special

decession from policing necessitates special care in recruitments to the job to draw

people of appropriate mental makeup and impart specialised training to reinforce those

special attribution. The police also requires periodical programmes of sensitisation for

the cause of social justice with exhaustive theoretical inputs. These officers should be au

fait in social legislations which are proliferating in geometrical proportion. This exigency

necessitates the constitution of a special police force to handle social laws which may be

called ‘ Social Police’ distinct from the normal police in charge of regulatory and other

police duties. The social police should have its parallel organisations at all levels as per

specific needs with distinct recruitment, training and sensitization facilities. An extra-

ordinary commitment to the social cause and out-of –the normal alacrity in tackling

social problems should be the hallmarks of the social police.

Delayed trails of social offences are more a reality than an exception while

promptitude is a virtue de rigueur for tackling social offences. The inquietude of delays

are often caused by lack of commitment to social causes. The same can be said about

easy anticipatory bails and easy release of persons arrested for social offences and light

sentences to convicted persons or failure to appreciate available evidences which leads to

frequent acquittals. Such a predicament for social offences when they are treated on par

with conventional cases in courts in natural because of the popular perception of the

social offences as trivial social problems. A judiciary sensitized it de regueur if the cause

of social justice is to be served in the trial stage. The establishments of social courts to

try exclusively social offences of al hues is en regle in the circumstances and should
prove efficacious. As distinct from conventional courts, a committed judiciary should be

the bedrock of these courts where hand-picked magistrates or judges committed a fond

to social justice and specially sensitized to the social causes preside. The courts, owing to

their specialisation in trying social offences would be in a better position to appreciate

the special circumstances of the offences and therefore appreciate evidences in the right

perspective and with sympathetic understanding. The specialisation also facilitates fast

disposals while the sensitzation helps to see through the gravity of the offences so that

unduly light sentences are not pronounced and persons arrested for social offences are

not wantonly released on bail.

Similarly, specially handpicked lawyers should be posted as prosecutors to the

social courts. These prosecutors should be selected on the basis of their commitment to

social justice and undergo a course in sensitization to social causes prior to their posting

to handle social offences. A case of social offence would be feracious in the hands of a

prosecutor who is committed to social justice and specially sensitized for social causes.