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 irrevocably
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 subsequent
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

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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 that 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

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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 clemency. 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

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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 involve
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 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 the wronged persons,

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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 that
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 publicized
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 complaints 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 specialized task requiring specialized
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 specialized training to reinforce that

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special attribution. The police also require periodical programmes of

sensitization for the cause of social justice with exhaustive theoretical inputs.
These officers should be au fait in social legislations that 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 is 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 is
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 establishment 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 handpicked magistrates or judges committed a
fond to social justice and specially sensitized to the social causes preside. The
courts, owing to their specialization 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 specialization also facilitates fast disposals while the
sensitization 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.

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