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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
REMEDIES UNDER THE LAW OF TORTS

SUBJECT
SOCIOLOGY - 1

NAME OF THE FACULTY


DR. LAKSHMIPATHI RAJU

Y. Vinay
18LLB096
1st Semester
Name of the Candidate
Roll No.
Semester
ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide Dr. P.
Sridevi for her exemplary guidance, monitoring and constant encouragement throughout the
course of this project. The blessing, help and guidance given by her time to time shall carry me
a long way in the journey of life on which I am about to embark. I take this opportunity to
thank all my seniors and for their constant support and guidance throughout the making of my
project.
Aims of the Study/SIGNIFICANCE OF STUDY

Aim of our study is to understand the different remedies available to the plaintiff under the
tort law.

RESEACH METHODOLOGY
Doctrinal

Scope of the Study


wide
Table of contents
Page no.
List of Cases (iii)
List of Abbreviations (iv)
Chapter I: Introduction 1-4
1.1 Meaning and Importance of ‘Law’
1.2 Meaning and Importance of ‘Society’
Chapter II: Relationship between law and society 5-8
Chapter III: Law as an instrument for social control
Chapter IV: Law and Social Change
4.1 Law and Social Change
4.2 An Example of India
4.3 Social Change as a Cause of Legal Change
Chapter III: Conclusion 9-10
Bibliography (v)
List of Cases
Page no.
Golak Nath v. State of Punjab,
5
Kesavananda Bharati v. The State of Kerala 6
Sajjan Singh v. State of Rajasthan 5
Shankari Prasad Singh Deo v. Union of India and State of Bihar
Narasimha Rao and Ors. vs. Govt. of Andhra Pradesh and Ors.
List of Abbreviations
A.I.R. India Reporter
H.C. High Court
p. Page no
S.C. Supreme Court
S.C.C. Supreme Court Cases
U.S. United States
INTRODUCTION
The law is important for a society for it serves as a norm of conduct for citizens. It was also
made to provide for proper guidelines and order upon the behaviour for all citizens and to
sustain the equity on the three branches of the government. It keeps the society running.
Without law there would be chaos and it would be survival of the fittest and everyman for
himself. Not an ideal lifestyle for most part.

The law is important because it acts as a guideline as to what is accepted in society. Without it
there would be conflicts between social groups and communities. It is pivotal that we follow
them. The law allows for easy adoption to changes that occur in the society.

Society is a ‘web-relationship’ and social change obviously means a change in the system of
social relationship where a social relationship is understood in terms of social processes and
social interactions and social organizations. Thus, the term, ‘social change’ is used to indicate
desirable variations in social institution, social processes and social organization. It includes
alterations in the structure and functions of the society. Closer analysis of the role of law vis-
à-vis social change leads us to distinguish between the direct and the indirect aspects of the
role of law.

1. Law plays an important indirect role in regard to social change by shaping a direct impact
on society. For example: A law setting up a compulsory educational system.

2. On the other hand, law interacts in many cases indirectly with basic social institutions in a
manner constituting a direct relationship between law and social change. For example, a law
designed to prohibit polygamy.

Law plays an agent of modernization and social change. It is also an indicator of the nature of
societal complexity and its attendant problems of integration. Further, the reinforcement of our
belief in the age-old panchayat system, the abolition of the abhorable practices of
untouchability, child marriage, sati, dowry etc are typical illustrations of social change being
brought about in the country trough laws.

Law is an effective medium or agency, instrumental in bringing about social change in the
country or in any region in particular. Therefore, we rejuvenate our belief that law has been
pivotal in introducing changes in the societal structure and relationships and continues to be
so.
Law 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. Social change involves an alteration of society; its economic
structure, values and beliefs, and its economic, political and social dimensions also undergo
modification. However, social change does not affect all aspects of society in the same manner.

While much of social change is brought about by material changes such as technology, new
patterns of production, etc., other conditions are also necessary. For example, as we have
discussed it before, legal prohibition of untouchability in free India has not succeeded because
of inadequate social support.

Nonetheless, when law cannot bring about change without social support, it still can create
certain preconditions for social change. Moreover, after independence, the Constitution of
India provided far-reaching guidelines for change. Its directive principle suggested a blueprint
for a new nation. The de-recognition of the caste system, equality before the law and equal
opportunities for all in economic, political and social spheres were some of the high points of
the Indian Constitution.
Chapter – I

Introduction

The question “What is Law?” haunts almost all the promising lawyers. The meaning of law
is subjective and varies from one person to another. It can be construed as a regulatory
mechanism, a code of conduct, a set of normative rules and regulations. Though all these
statements are true, yet they provide an incomplete picture of law.
Law is an instrument of social change, or a means to achieve justice in the society. History
is replete with many situations where law has acted to bring about social reformation. For
example social evils such as sati, purdah, dowry, child marriage have been strictly brought
under control through legal sanction. Not only can these but various other examples can be
cited where law has impacted the society in order to usher in social change.
Law may be considered as an abstract set of rules and regulations backed by an authority as
said by John Austin ‘Law is the command of sovereign’. The preamble of our constitution
reads “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its
citizens”1, makes us, all citizens, an actively participates in the law making process. In other
words the process of law making is directly or indirectly related to each and every individual
in the society. Thus, in this project we try to understand the various areas where law impacts
society as well as the life of all those who are a part of it.

1.1 Meaning and Importance of ‘Law’


Most of us are required to observe many different kinds of rules. School children may be
required to wear a uniform. People belonging to certain religion are prohibited to eat a
particular substance or do a particular thing.
Law is often based on morality. For example, murder and rape are regarded as immoral,
and are punishable in all societies and are proscribed by most religions. In such cases, the law
coincides with morality but this need not always is the case. For example lending money at
interest is practised since times immemorial. But this is prohibited by Islam. Similarly,
Christianity prohibits Usury, i.e. excessive interest. Traditional Hindus follow the rule of
Damdupat, i.e. the total interest must not increase the principal sum. The Money-lender Acts
in force of various states do regulate interest which, by virtue of the practice of compounding
their interest but they have limited application

1
Preamble to the Constitution of India
There are many perspectives regarding Law. From one outlook, law can be said as an
abstract body of rules and statues. And from the other, it could be seen as a social method of
dispute resolution of the conflicting interests of the people living in the society. Law may also
be considered as of having a coercive character, or can also be seen as made by the customs,
traditions or religion. Law can also be said to inherently exist in the society.
Some thinkers have made an attempt to clear the picture of the concept of law. In the
words of Kant law is the ‘sum total of the conditions under which the personal wishes of one
man can be combined with the personal wishes of another man in accordance with the general
law of freedom’ . Hegel explains law as the, ‘the abstract expression of the general will exist
in and for itself’. John Austin says, Law is the command of Sovereign, Savigny considers law
as Volksgeist i.e. the spirit of the people. While, Roscoe Pound, a thinker of Sociological school
of law, considers law as ‘Social Engineering’.
Similarly various others thinkers have coined law in their own different perspectives.
Therefore, it can be observed that law is a vast subject of study and defining it in limited words
would be restricting its scope and would not construe the correct picture. Law is ever evolving
and keeps on growing with the development of the society.

1.2 Meaning and Importance of ‘Society’


Society must be understood as a combination of functional, cognitive, and cultural systems.
Functional systems include market, political institutions, and familial processes and deal with
the production and consumption of goods, the provision of services, the waging of war, and the
administration of justice and education. Cognitive systems organize values to guide choice
among alternatives. A unique combination of functional, cognitive, and cultural systems
defines and distinguishes a society.
The society changes as any element within it changes and the process of change is constant.
Values are preached and rejected, technology is altered, and roles are achieved. Change creates
stress, but adaptation and adjustment make possible continuity (and perhaps a temporary
stability). Thus, a society may experience significant change in its functional system through a
political or technological revolution, yet still maintain its essential quality. The force that holds
it together, that gives society meaning, in spite of change, is ideology.
An ideology is a way of looking at the world that is shared by members of a group; it
connects individual precepts to those generally held in the society and provides the group a
base for consensus.
Ideological change on a large scale is revolution. There is a significant difference between
the evolutionary change that constantly marks society, and revolutionary change that literally
transforms the society into something new, something not previously experienced by the
individuals within it. Such revolutionary change comes about when the cognitive, cultural, and
functional systems have accumulated so much change, together or independently, that they are
no longer commensurate with the ideology that served to interpret them. When the problems
confronted no longer seem capable of solution within the existing systems of information
organization then comes revolutionary change2. Such revolutionary changes were experienced
in the medieval and some Western Societies in modern ages.
In the project we will study as how changes are brought about in a society, by using law as
an instrument of social change. Law and society are integral to each other. In order to maintain
disciplines in the society, law plays a substantial role. Though instances show situations where
law lags society, but as we all know that society is ever evolving and so ins the law both cope
up with each other and remain in consonance with each other.

2
Dr. Alston'Economic History of the U.S.
CHAPTER 2

RELATIONSHIP BETWEEN LAW AND SOCIETY

In this chapter we study the relationship between law and society in relation to their
interdependence on each other. Law and society share a symbiotic relation. In every society
we find complexity in the action of the individuals and conflicting interests. This is because
the needs and wants of humans are infinite, but the resources to fulfil those demands are limited
and exhaustible. Therefore, in order to achieve and maintaining optimum utilization of
resources by providing maximum satisfaction to maximum people and by creating minimum
friction, law comes in the picture.
Society can be viewed from various perspectives. Some may view it as autonomous
social reality independent of those who form it, giving rise to social forces that act upon, control
and determine the conduct of its constituents. Here the view of man as a product of social forces
is called ‘determinism’. While others view it as an association of individuals, in which every
constituent participates as an active agent in the creation of social reality. This view is known
as voluntarism1.
Social control mainly takes place through customs, traditions, religion, social mores,
etc. But these are informal and non-institutionalised. But law can be considered as the most
specialised form of social control. Durkheim views law as the direct embodiment of the
‘conscience collective’. This view seems to ignore the coercive character of law. Even while
accepting the coercive character of law; it is important to remember that law does not operate
as an exclusively coercive mechanism. If law is effective as a method of social control, it must
have legitimacy, and value consensus as the root of legitimacy2 .
According to Max Weber, Power is the probability that one actor within a social
relationship will be seen in a position to carry out his own despite resistance, regardless of the
basis on which this probability rests. Though law constraints misuse of arbitrary power, it
prevents a state of anarchy. In order to achieve this purpose it has set up the ‘Rule of Law’.
Rule of law means governance of laws, and not of man. It totally restraints any part of the
society to act arbitrarily on its own will. Everyone is below the law and must abide by the law
of the land.
This creates, maintains, and regulates a state of peace and order in a society. Due to the
presence of law in the society justice is prevailed. It prevents the elements of tyranny,

1 N K Jayakumar, LECTURES ON JURISPRUDENCE. 2nd ed. 2008, p. 14.

2 Ibid.,p-15.
dictatorship, authoritarianism, totalitarianism in governance that is it prevents the ruler from
acting in a despotic fashion and rulings the society on his own whims and fancies.
It has been seen in some landmarks cases where law has acted as an instrument to bring
about social change in the society.
For instance the Shah Bano case was a milestone in the Muslim women's search for
justice and the beginning of the political battle over personal law. A 60-year-old woman went
to court asking maintenance from her husband who had divorced her.
The court ruled in her favour. Shah Bano was entitled to maintenance from her ex-
husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs. 500 a
month) like any other Indian woman. The judgment was not the first granting a divorced
Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict
an attack on Islam.
By going through this case, it shows that how can law bring about social change in
society even if it has to go against the established customs, traditions, mores and beliefs of the
society for the sake of delivering justice in the society.
Another explanation could be the Golaknath v. The State of Punjab 3. Where in 1967,
in Golak Nath vs. The State of Punjab, a bench of 11 judges (constituted for the first time) of
the Supreme Court deliberated as to whether any part of the fundamental constitutional rights
could be revoked or limited by amendment to the Constitution.
This question had previously been considered in Shankari Prasad v. Union of India4
and Sajjan Singh v. State of Rajasthan5. In both cases, the power to amend the rights had been
upheld on the basis of Article 368.
Chief Justice Subba Rao writing for the majority (5 Judges dissenting) held that:
a) A Law to amend the Constitution is a Law for the purposes of Article 13.
b) Article 13 prevents the passing of Laws which "take away or abridge" the Fundamental
Rights.
c) Article 368 does not contain a power to amend the Constitution but only a Procedure.
d) The power to amend comes from the normal legislative power of Parliament.
e) Therefore, amendments which "take away or abridge" the Fundamental Rights cannot be
passed.

3 AIR 1967 SC 1643

4 (1952) SCR 89

5 1965 AIR 845 1965 SCR (1) 933


Six years later in 1973, 13 judges of the Supreme Court, including then Chief Justice
Sikri, heard arguments in Kesavananda Bharati v. The State of Kerala6, and thus considered
the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the
decision in the Golak Nath case. This time, the court held that although no part of the
Constitution, including fundamental rights, was beyond the amending power of the Parliament
(thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated
even by a constitutional amendment".
Nani Palkhivala, assisted by Fali Nariman, presented the case against the government
in both cases. The following can be said:
1. All the Judges held that 24th, 25th and 29th amendments acts are valid.
2. 10 Judges held that Golak Nath's case was wrongly decided and that an amendment to
the Constitution was not a Law for the purposes of Article 13.
3. 7 Judges held that the power of amendment is plenary and can be used to amend all the
articles of the Constitution (including the Fundamental Rights).
4. 7 Judges held (six Judges dissenting on this point) that "the power to amend does not
include the power to alter the basic structure of the Constitution so as to change its
identity"
5. 7 Judges held (two Judges dissenting, one leaving this point open) that "there are no
inherent or implied limitations on the power of amendment under Article 368."
However 9 Judges (including 2 dissentients) signed a summary stating that "the view of the
majority" in the case was that:
1. Golak Nath's case was overruled.
2. Article 368 did not enable Parliament to alter the basis structure or framework of the
It follows, therefore, that this case established the principle that the basic structure
cannot be amended on the grounds that a power to amend is not a power to destroy. This shows
how law not only enforces the rules and regulation and delegates duties to the constituents of
the society but even guarantees as well as safeguards their rights and protect them from the
harsh edges of the legislature, executive and even judiciary itself.
In the above mentioned cases we see impact of law on the society where the court
seven overrules its own judgement, for safeguarding the fundamental rights to the citizens.
The way law safeguards its citizens shows the concern of law for the society.
The question arises as to how the judiciary can safeguard the rights of the individuals
against it. The answer to this is the power of judicial review, which confers each court the

6
AIR 1973 SC 1461
power to intervene when the executive or the legislature tries to overstep their power. The
statutory provisions that give rise to the jurisdiction to consider claims for judicial review do
not, however, define its scope. it is ‘a remedy invented by the judges to restrain the excess or
abuse of power’7 and ‘secure that decisions are made by the executive or by a public body
according to law’.

7
Hugh Southe, Adrian Fulford, JUDICIAL REVIEW: A PRACTICAL GUIDE.
CHAPTER 3

Law as an instrument for social control


In primitive societies the folkways, the mores and customs suffice to control the individual
behaviour, since there is almost unquestionable compliance with the. But, as discussed above
in modern civilized societies customs tend to loosen their hold with the result that laws are
enacted by the state to control the individual. The transition from customs to law is
just a part of the general rationalisation in modern society. Various definitions cited. The term
‘law’ has been variously defined by the writers. According to Sumner laws are actually
codified mores. Kant defined law as ‘a formula which expresses the necessity of action.’
Krabbe defines law as ‘the expression of the many judgements of value which we human
beings make, by virtue of our disposition and nature.’ According to green, ‘law is a more or
less systematic body of generalized rules, balanced between the fiction of performance and
the fact of change, governing specifically defined relationship and situations, and employing
force or threat of force in defined and limited ways.’ According to duguit laws are ‘the rules
of conduct which normal men know they must observe in order to preserve and promote the
benefits derived from life in society.’ Another sociologist writes ‘law is the standard of
conduct, which in consequence of the inner impulse which urges men toward a reasonable
form of life emanates from the whole, and is forced upon the individual. It is distinguished
from morals, custom, and religions as soon as the point is reached at which compulsory
standards are separated from those demands that involve merely social amenity.’ According
to MacIver and Page law is the body of rules which are recognised \, interpreted and applied
toparticular situations by the courts of the state.’ B. N. Cardozo writes, “law is a principle of
rule of conduct so established as to justify a prediction with reasonable certainty that it will
be enforced by the courts if its authority is challenged.” According to Max Webber, law, ‘is
an order, the validity of which is guaranteed by the probability that deviation will be met by
physical or psychic sanction by a staff specially empowered to carry out this sanction.”
Hertzler comments, “law in effect structures the power (superordinate-subordinate)
relationship in society; it maintains the status quo and protects the various strata against each
other, both in governmental and non-governmental organizations and relationship.”
According to Roscoe Pound, “Laws properly so called are a species of command. But, being
a command, every law properly so called flows from a determinate source or emanates from a
determinate author.”
Two approaches. Thus there is marked disagreement among scholars as to what the law is.
There is no single definition of law which will encompass preliterate legal arrangements, the
Code of Hammurabi, and law define it as the command of the sovereign or the dictates of the
state. Those taking the sociological view define law as the rules of right conduct. The
problem here is “shall we keep the word ‘law’ for the specialized system with their codes;
their apparatus for setting disputes,, and the penalties for those who have
broken the rules, or shall we regard these as mere specializations of a
similar kind of control which may be found in unorganized forms, but
without what we ordinarily think of as “legal sanctions?”
Those who hold the former view argue that jurisprudence makes it
convenient to use the word ‘law’ in a specialized sense, while the advocates
of the latter view hold that primitive peoples had something which may be
called law and that the rules of voluntary associations like trade-union,
club, university, family, as much as regulate the behaviour of man as the
law of land. Enactment of enforcement by the state should not be
considered essential elements of law. Pollock writes, “If we look away from
such elaborate systems as those of the later Roman Empire and of modern
Western Governments, we see that not only law but law with a great deal of
formality, has existed before the state had any adequate means of
compelling its observance-and indeed before there was any regular process
of enforcement at all. “ This means that two views may be taken of law. In a
wide sense, it included all the rules of conduct observed by men as a matter
of habit. In a narrow sense, it may mean the body of rules which are
recognised or made by the state and interpreted by the courts of land.
Custom becomes law when the state is prepared to enforce it as a rule
binding on citizens. To avoid the confusion between custom and law we
should use the term ‘law’ in the narrow sense, i.e., as rules enacted or at
least interpreted and enforced by special agencies of the state.
In a leading case, i.e., in I. Narasimha Rao and Ors. vs. Govt. of Andhra
Pradesh and Ors. (23.09.1976 - APHC)[1], Hon’ble judge stated that:
• Rights of the people and social control through law are not
antithetical. They are not mutually exclusive either. The power of the
State, manifesting through Law is extended, with the object of
securing greater equality in personal rights, particularly in economic
sphere and of organising public resources for common good. There
does not involve in these extensions of State power any loss of
personal liberty much less any sacrifice of liberty for equality. Liberty is no more to be the
exclusive preserve of the chosen few. Freedom
can never be absolute. The freedom of each is limited by equal claims
of others. Whenever there are great inequalities of power, freedom
cannot be general. In order to secure freedom for all, it is necessary
that all should be equally protected against the abuse of power and
that the power of the State should be employed to reduce or remove
arbitrary inequalities and to ensure that the common resources
should be used not for personal ends but for the general well-being.
• The formulation of any theory of social justice, man need not and in
fact should not be taken as an individual set against society. The
dignity and individuality of the individual which the constitution
exalted could have relevance only in a human social context. Men
realise their individuality and their humanity only as social beings.
That is the meaning we find in the growth of social legislation and
social control through law. The power of social justice finds its outlet
in the method of sociology.
CHAPTER 3

Conclusion

From the above readings, it can be concluded that in the last sixty years, we have seen many
changes such as progress and rehabilitation agitation and classification of social interactions
and social reforms in the society. This workshop’s main objective is to study different aspects
of the criminal justice system in the United States and abroad (including a special session on
Brazil), and their impact on the construction of social and cultural identities, life options and
conditions, and human interactions.
Law is the most important element of the society. It reflects not the professed customs but the
inherent beliefs of the social beings. The statement reveals the eternal bonding of law and
society. Law is a cohesive force providing coordination to the society. If a society is devoid
of law and order, there can be no discipline with chaos and confusion throughout the land and
every person claiming superiority over the other. Law is a system of regulatory activity and it
expresses the will of the entire population.
In the absence of law, people would always be justifying their acts and frequent strider would
crop up which is definitely unhealthy for a society and would prevent the growth of
civilisation.
We all have to agree that law aids in social coordination. Law is an intervention agency (an
instrument for social change and welfare). It is a catalyst for soci-economic development.
Law is basically a complete non- arbitrary institution by itself providing near justice(or total
justice is just an unattainable ideal of state) and ensuring healthy relationship between social
neighbours.
Law is justice-oriented and it provides coordination in the sense that it resolves disputes and
friction in the society as well as wrongs committed against its constituents. In the society
where law get priority conflicts can be settled through natural justice without disturbing the
social integrity or hurting the morality.

Social coordination (or inter relationship between the several social institutions or parties, ne
it individuals, companies, religious groups, political entities and so on) can be achieved,
when peace thrives in a society which can happen when justice is delivered properly. To
avoid complexity several laws have been framed for separate crimes which aims ar natural
justice.
Certain examples in support of the notion could be:
1. In case of demolition of Babri masjid, the Supreme Court intervened and brought
coordination between the two conflicting religious groups by passing the interim
order of maintaining ‘status quo ante’.
2. Though we establish the intimate relationship between law and liberty, yet it is to be
kept in mind that liberty is not improper unrestrained power of the people amounting
to anarchy. Even the fundamental rights provided in our constitution have reasonable
restrictions. So, we regulate liberty and other social facets like religious groups,
linguistic groups, social groups, economic groups and bring parity among them.
3. Law is the essence of human development as it holds the nation views together. It was
the will of the people which made light to education a fundamental right.
4. The aim of law is to establish a Welfare State. Various laws like environment laws,
consumer protection Act, Domestic Violence Act have emanated for the general good.
5. Non-arbitrariness in the sense that people can always appeal to the higher courts and
the judicial decisions are always for the general good and welfare.
6. Law always strives to provide justice in the human society. unjust laws cannot be
called laws as they pose to the civilization.
7. Law is the mirror reflection of the society. For knowing the ideology of a country or
how its reacts to various problems, one must study the law of the land.
Hence, it could be inferred that law impacts the society at a very large scale. And the relation
between law and society inalienable, where exists a society, law has to come into existence.
And the impacts of law on the society can be clearly seen in every day to day working of us.
Bibliography
Books -
N.K. Jayakumar, Lectures on Jurisprudence, 2nd ed., Lexis Nexis Butterworths
Hugh Southe, Adrian Fulford, Judicial review: A practical guide
Dr. Alston, Economic History of the U.S.

Internet –
http://www.google.co.in/
http://www.books.google.co.in/
http://www.wikipedia.org/