UNIT 1 – SOCIAL BASIS OF

LAW
TOPIC: ROLE OF COURTS & LAWYERS
AS SOCIAL ENGINEERS

By:

Sumaiya Khan
Assistant Professor
NIMS School of Law
NIMS University Rajasthan
Jaipur
 I. INTRODUCTION

• Laws are established for the purpose of governance, with the goal of protecting
people's rights on one side and controlling their actions on the other.

• A human being, a social animal, is a consequence of the society in which he lives

and is regulated by the desires that he wants to assert during his lifetime. Rights
and interests seem to clash with each other, and what the concept of social
engineering postulates is the method of balancing these interests and rights with
each other in order to ensure optimal gain for all.

• In order to balance the needs of society to offer maximum value to the maximum
number under the welfare state regime, social engineering was put forward by
Roscoe pound.

• In the context of the social engineering phase in India, constitutional provisions,

laws and judicial decisions, the Roscoe Pound’s theory of Social Engineering and
its application to the Indian legal system as a tool of justice are briefly addressed.
 II. THEORY OF SOCIAL ENGINEERING
• “Law is social engineering which means a balance between the competing interests in the society” -
Dean Roscoe Pound (1870-1964)

• The sociological, liberal, utilitarian, pluralist, philosopher and father of Modern American
Sociological Jurisprudence, Roscoe Pound, has contributed greatly to the field of legal
jurisprudence. Unlike a self-justified order from the sovereign, the sociological school theorized
law as one that derives from historical and cultural processes.

• It arose from the previous analytical approach to interpreting law more pragmatically and
functionally as a means of achieving social goals. They concentrated on how the law would
actually work rather than what the law should be.

• The sociological approach literally revolved around the social realities, norms and issues that the
legislation aims to address and provide a social setting for common good and full gain for all as an
instrument of social regulation.

• Law, therefore, is not idealistic or dogmatic, but a practical instrument that governs according to
the social problems in order to achieve social stability, justice and equilibrium in society. This is
because the essence and intent of an effective law lies in the social relations it attempts to regulate.

• The most prominent and unique contribution to this understanding of law was advocated by
Roscoe Pound in the form of the ‘Theory of Social Engineering’, based on society’s behavior,
patterns, cultures, attitudes etc.
a) Based on Social needs

• "Social" refers to a community of people who form a society and the word "Engineering"
refers to the way an engineer works by means of a system or instrument based on continuous
experiments and practice in order to make a specific finished product.

• Similarly, the principle of social engineering is to accomplish social objectives by means of a

law based on social circumstances.

• Therefore, law is based on the society it seeks to govern. It is an instrument of social

regulation focused on the need, goal-oriented and purposive in nature with society at the very
center of its formulation as well as application.

b) Harmonizing competing interests

• “I venture to think, would represent the social order as an organized human endeavor to satisfy
a maximum of human wants with a minimum of sacrifice of other wants. It would represent
the legal order as that part of the whole process which is or may be achieved by the force of
politically organized society. It would picture elimination of friction and waste, economizing
of social effort, conservation of social assets, and adjustment of the struggle of individual
human beings to satisfy their overlapping individual claims in life in civilized society, so that
if each may not get all that he demands, he may at least obtain all that is reasonably
practicable in a wise social engineering.”

• Here, Roscoe Pound clearly ventures the harmonizing of interests while maximizing interest
and minimizing sacrifice.
• Clearly, social engineering can be understood as formulating a structure of society which
requires the satisfaction of the maximum of wants with the minimum friction or waste or
sacrifice. By this means, one must get what is reasonable which can be affected by
harmonizing or balancing the conflicting or competing interests, desires, claims, and wants.

• He proposed that the study of law should be balanced by social aspects in order to become
more successful for this reason of balancing the conflicting interests of society in order to
achieve maximum satisfaction of the maximum need of individuals. Spencer and Bentham
have extended laws directly or indirectly to men as part of the society.

c) Laws goal/purpose oriented

• The need for a purposeful definition of law is based on the idea that law is a form of social
regulation that can only be regulated when set objectives are defined.

• In addition, Pound was a child of his time, a period of industrial revolution and increasing
commercial and technological regimes in which wealth distribution was a challenge.

• Thus, Pound propounded a definition of law to serve the purpose of solving a social problem
like that of equal distribution of wealth. While law, without any goal or purpose, was regarded
by him as an abstract notion.

• Just like an engineer working on his product, in order to devise successful rules, a jurist must
analyze, examine, experiment, study the factual aspects, and enlist the intent and means.
• In this regard he postulates the following points of consideration for harmonizing the
competing interests:
a) Factual study
b) Social investigation
c) Sociological, psychological and philosophical study
d) Presume possibility of a just and reasonable solution
e) Have a separate department of law
f) Achieve the purpose so defined

• Therefore, we can conclude that laws are not merely rules or formulas in Pound's
understanding, but experience, doctrines, reasoning, presumptions, perceptions that
influence the task of balancing interests.

• The institution of laws can be classified in five categories as follow:

a) Laws as rules- laying down the standard of conduct and decision
b) Laws as principles- Authoritative points
c) Laws as conceptions- Defining the classes and situation of application
d) Laws as doctrines- A union of rules principles and conceptions
e) Laws as standards- Notions prescribing the permissible limits of conduct
 III. MANIFESTATION IN THE CONSTITUTION
Articles 14, 15 and 16

• While Article 14 provides equality before law and equal protection of law, Article 15 (3) and later
additions of 15(4) and (5) provide special treatment to Schedule castes, schedule tribes and women. This
was based on the notion of positive rights and positive discrimination in the form of reservations to uplift
the deprived which was also upheld by the Supreme Court in Indra Sawhney v. Union of India AIR 1993
SC 447.

• Part IV of the Constitution offers detailed directives to the State to ensure social order, national
development, adequate livelihoods, fair pay, eradication of inequality, etc. by its policies, so that social
justice can permeate all institutions of national life. Hence, Part IV of the Constitution aims to deliver
social justice and promote welfare of the people.

Balancing Article 19(1)(a) with Article 19(2)

• The conflict between these two articles of the Indian Constitution is a fitting example of the conflict
between the rights of individuals and that of the public at large, effectively designed by the framers of the
Constitution. The courts have also clarified the same thing as protecting the social interest of everyone.

• Article 19(1)(a) grants every citizen of India the fundamental right to freedom of speech and expression. At
the same time, however, absolute freedom is as dangerous as the absence of freedom of speech and
expression, enacted by the framers of Article 19(2) of the Constitution, which safeguards the rights of other
persons, of society as a whole and of the state. This was achieved by way of social engineering, where
different factors were taken into account and balanced against each other. The sub-clause (2) lays down
that reasonable restrictions on the count of security and sovereignty of India, public order, decency or
morality, contempt of court, defamation and incitement to any offence, can be imposed on the right
conferred by Article 19(1)(a).
Balancing Article 19(1)(g) with Article 21

• There has been an incongruity in the rights provided for in Article 19(1)(g) of the
Constitution, which guarantees to every person to freedom of trade and profession, and Article
21, which, inter alia, guarantees the right to a clean environment for society. The rights of
industries polluting the environment have been curtailed. Though there is no conflict per se
between the two rights, the task of comprehending social justice in the society oversaw the
Supreme Court in ruling that the primacy has to be given to people's right to clean
environment.

Balancing Article 25 with 26

• Although Article 25 guarantees the right to religion, Article 26 gives religious minorities the
right to the management and administration of religion. There has been a tension between
people's rights to practice their faith and the customs and practices imposed by religious
denominations. However, the same is still unsettled and waiting to be balanced by social
engineering in the case of Kantaru Rajaveeri v. Indian Young Lawers Association (2020) 3
SCC 52.

Article 51A

• In addition to numerous provisions guaranteeing rights, the constitutional framers balanced

the same with the fundamental duties that every person must perform, as provided for in
Article 51A.
Balancing Fundamental Rights with Directive Principles of State Policy (DPSP)

• The debate whether Fundamental rights take precedence over the DPSP or vice versa was a
long drawn one which finally came to rest in the case of Minerva Mills v. Union of India,
(1980) 3 SCC 625, wherein courts while recognizing the ‘Principle of Harmonious
construction’, balanced and harmonized the two parts of the Constitution.

• In case of a political threat to fundamental rights, the latter has been preferred by the Apex
Court, while in situations where rights are violated by social and economic institutions the
Supreme Court has gone ahead with the defense of the DPSP.

• In order to preserve both individual fundamental rights and the DPSP's governing popular
social order, the consciousness of the Judiciary must harmonize the rights as necessary.
Therefore, the law of social engineering, as Roscoe Pound explained, is a constant process of
balancing according to social change.
 IV. JUDGES AS SOCIAL ENGINEERS

• Under Article 32 and Article 226, the Constitution empowers the Supreme Court and the High
Courts to ensure constitutional rights, established on the values of justice, liberty, equality and
democracy; to eliminate the caste and gender biases that prevail in society and to lead a way
forward in an egalitarian society. The role of ensuring that these rights are implemented,
however, has led the judges to serve as social engineers in balancing the needs of individuals
with those of the public interest.

• The Supreme Court, which is the guardian of the rights of the citizens of this country, shall
interpret the Constitution in its true meaning with insight of social values and evolving social
needs, upholding the fundamental framework of the Constitution for the preservation of social,
economic and political justice as well as equal status and opportunity.

• Sociological jurists emphasize on the balancing of the conflicting interests of the individual,
and the society through the process of ‘social engineering’ which has also been affirmed in the
actions of the Supreme Court.

• In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress 1991 Supp (1) SCC 600 it was held
that law is a tool of social engineering to remove the existing imbalance and to further the
progress, serving the needs of the Socialist Democratic Bharat under rule of law. It is
necessary to recognize the social circumstances and realities of life when judging whether or
not the challenged legislation will fulfil the intent of society. Therefore, arbitrary discretion
has no meaning and the courts must take account of the facts of life.
 IV. JUDGES AS SOCIAL ENGINEERS

• In the case of Bandhua Mukti Morcha v. Union of India AIR (1991) 4 SC 117 , the Apex court
while addressing the violation of fundamental rights in a case, observed that courts should
skip from applying the Laissez-Faire approach and adhere to the new techniques of acting
freely like the “activist judges” to secure the fundamental rights of the Citizens.

• In State of Madras v. Champakam Dorairajan AIR 1951 SCR 525 , the Apex Court held that
the Directive Principles and the Fundamental rights should be in harmony and balance.

• As recognized in Minerva Mills v. Union of India AIR 1980 SC 1789 , it was reiterated as the
fundamental framework of the Constitution. The Court further claimed that Article 46, which
is the Directive Principle, cannot override the fundamental rights.

• In Vellore Citizen’s Welfare Forum v. The Union of India AIR 1999 SC 2715 , also known as
the Tanneries’ case, the Supreme Court observed that a person’s right to fresh air, clean water
and pollution-free environment, are a part of right engraved in Article 21. The Court further
observed, “Our legal system having been founded on the British Common Law, the right of a
person to pollutionfree environment is part of the basic jurisprudence of the land”. Thus, the
Court balanced the claim by prioritizing public interest over individual interest
 IV. JUDGES AS SOCIAL ENGINEERS

• In B. Venkatramma v. State of Madras AIR 1964 SC 572, a communal order passed by the
Government allotting certain vacant posts in government services in fixed proportions to Muslims,
Christians, Harijans, Backward Hindus, Hindus, Non-Brahmin Hindus, and Brahmins was held to
be a violation of Article 16(1) of the Constitution.

• The Apex court while recognizing the scope of Social engineering held that the absence of a
precedence shall not restrict the court and if it did so, that shall be the death of social engineering
as every new norm or measure was formulated for the first time at some time in the history (D.S.
Nakara v. Union of India, (1983) 1 SCC 305). This highlighted the need for social engineering to
be applied even in places which lacked laws.

• Thus, the past few decades have witnessed great judicial activism in this regard. While the
understanding of Article 14 was widened to strike at anti-arbitrariness; the ambit of Article 21 also
swept in various rights under the interpretation of life as a decent life and not merely an animal
existence as observed in Francis Coralie v. Union Territory of Delhi 1981 SCR (2) 516. This also
led to the recognition of right to livelihood (Olega Tellis v. Bombay Municipal Corporation, AIR
1986 SC), food, education ( Unni Krishnan v. State of AP., (1993) 1 SCC ) and many more as
fundamental rights to life.
 IV. JUDGES AS SOCIAL ENGINEERS
• The Supreme Court has also held that any kind of interpretation that hampers the growth or
social development is to be discarded by the courts (Ashok Kr Gupta & others v. State of Uttar
Pradesh).

• In Sarla Mudgal v. Union of India (1995) 3 SCC 635, the Apex court while deciding on
“marriage” stated that such subjects are governed under the personal laws and one’s personal
law can’t be overridden by another’s personal laws. The Court applied the social
jurisprudential approach in this case in the manner similar to what Pound has interpreted to
weigh competing factors together to pave a balanced solution.

• One cannot ignore the recent cases of de-criminalisation of Section- 377 in the case of Navtej
Singh Johar and Ors. v. Union of India and Ors., (2018) 10 SCC l or de-criminalising
Adultery in the case of Joseph Shine v. Union of India, (2019) 3 SC 3 after balancing the
rights and interests of people to derive their own sexual identity.

• The Public Interest Litigation (PIL) that urged to protect the interests of the underprivileged
who are not informed or trained enough to be able to enter the courts to assert their rights has
become another social engineering tool established by the judiciary.
 IV. JUDGES AS SOCIAL ENGINEERS

• The foundation of PIL is based on judicial activism and the credit goes to eminent Judges
like P.N Bhagwati, Krishna Iyer, Chinappa Reddy. The new definition of 'locus standi' has
been put forward and, the human rights and the Directive Principle of State Policy are
harmoniously understood.

• The court has interpreted socio-economic rights in the light of the Directive principles and
has ensured that people follow the direction of the welfare state. The rights to livelihood and
speedy trial are protected by Article 21 of the Constitution. Similarly, such rights should be
guaranteed in a fair and equitable manner under Article 14 of the Constitution of India.
India's Supreme Court has been allowed to cross-check the laws of the Parliament if it is
arbitrary and or in derogation to the "basic structure" of the Constitution. Thus, by securing
the civil liberties and socioeconomic rights of people, the Supreme Court of India has
created a new jurisprudence.

• It can be argued that the process of balancing conflicting interests in times of dispute and
paving a path forward for the common good has been successfully adopted and applied in
the Indian legal system on the basis of constitutional provisions, judgments pronounced by
the courts and legislations formulated. The old notions of mere interpretation of the law as it
is, has also been departed by the Hon’ble Supreme Court in the light of securing justice to
maximum number as the paramount goal.
THANK YOU.