Dharma as the Law of Righteousness in Indian Society

Seminar Paper submitted to the Murshidabad University for the partial fulfilment for the award
of the degree of Master of Laws

By: SK NOOR MAHAMMAD

Registration No: 22-208-13-0498 of 2022-23

Examination Roll No: 22-P08-020

DEPARTMENT OF LAW

MURSHIDABAD UNIVERSITY

BERHAMPORE, MURSHIDABAD,

PIN - 742303
 CERTIFICATE

This is to certify that the Seminar Paper titled “Dharma as the Law of Righteousness in Indian
Society” submitted by SK NOOR MAHAMMAD Registration No.: 22-208-13-0498 of 2022-23
Examination. Roll No: 22-P08-020 have been approved by me.

Date:

Place: Signature of Guest Professor

 INDEX

Sr. No. Title Page No.

Abstract 1

Introduction 1

Meaning of Sociological School 2-6

Background

Characteristics
Jurist of Sociological school of jurisprudence: 8-11

Montesquieu (1689-1755)

Auguste Comte (1786-1857)

Herbert Spencer (1820-1903

Ihering: (1818-1892)

Eugen Ehrlich (1862-1922)

Leon Duguit (1859-1928)

Roscoe Pound (1870-1964):

Social Engineering Theory

Jural postulates

Sociological School of Jurisprudence and Joseph shine v. Union of 11-12

India case:
 Social Issues Raised in that case 12-14

Sociological aspects in the Judgement

Referred judgements

Conclusion & suggestions 14

Webliography/Bibliography 15

Abstract

The development and implementation of law in real life is required a socio-legal approach which
directly investigates the social situation in practical view. The law should be put into the
perspective of that situation by verifying the part of the law plays in the creation, maintenance
and or change of the situation. Over centuries Indian society has influenced by a lot of changes
(reforms) and many of them have incorporated in this culture remaining the other features intact.
These changes are accompanied by introducing sociological schools of jurisprudence. In
nineteenth Century “Sati pratha (practice)” was abolished and “widow remarriage” was
approved. These Changes were the major achievements of Indian Society. These changes have
removed the traditions and methodologies which was a curse to all the women and humanity.
After independence, the Constitution of India was written in view of the socio-economic
problems and their remedy with application of sociological schools of thought. Presently many
reforms in Indian society have been implemented by the action of Legislature (Parliament) with
the recommendation of Judiciary such as Passive Euthansia permitted (2018), Adultery as non-
punishable offence, i.e., IPC Section 497 unconstitutional (2018), Homosex or Transgender Sex
decriminalised , i.e., IPC Section 377 unconstitutional (2018), Triple Talaq banned and
punishable offence (2019), Article 35A and Article 370 of the Indian Constitution for Jammu
and Kashmir revoked (2019).Thus, the jurists who define law in relation to the society and
consider law as an instrument of social change are said to belong to Sociological school.
Keywords: Sociological school of jurisprudence, Jurist of sociological school of jurisprudence,
Montesquieu, Duguit, ihering, Roscoe pound, ehlirich, August comte, spencer, social
engineering theory, judicial postulates, Joseph shine v. Union of India case & society.

I. Methodology: In this study you will be comprehend by the real facts about “Naxalism”.
This research totally based on Doctrinal research method. Data has been interpreted on
the basis of qualitative method. This research tries to establish the real facts by a critical
examination of data through descriptive and exploraatory study of materiasl which have
been collected from secondary sources such as books, journal, websites, experiment of
researcher etc.

II. Literature Review:

1. The law is framed by a social situation analysis which is considered a necessary part of
the understanding of that situation in realistic view. The development and perpetration
of law in real life is needed a socio-legal approach which directly investigates the social
situation in practical view. The law should be put into the perspective of that situation by
vindicating the part of the law plays in the creation, conservation and or change of the
situation. Over centuries Indian society has told by a lot of changes( reforms) and
numerous of them have incorporated in this culture remaining the other features
complete. These changes are accompanied by introducing sociological and realist
seminaries of justice. In nineteenth Century “ Sati pratha( practice) ” was abolished and “
widow remarriage ” was approved. These Changes were the major achievements of
Indian Society. These changes have removed the traditions and methodologies which
was a curse to all the women and humanity. (Dr. Pijush Kanti Bhattacharjee ,Department
of Electronics and Communication Engineering, Guru Nanak Institute of Technology,
Kolkata, Pin 700114, India and Advocate, Supreme Court of India, New Delhi, India.)

2. Law has consistently been taken a gander at as one of the significant instruments that
could achieve social change. Indian society has transformed over the period of time from
a society governed by Smrithi , Sruti, Dharma and other customary law, to western
conceptions of law and authority during the colonial period. Further with the rights-based
Constitution and dynamic law-production which incorporates the codification of strict
 laws and governmental policy regarding minorities in society during the post-pioneer
period, the Indian culture has gone through change. The commitment of sociological
statute to the social change in India, could be all around surveyed as perceived by seeing
the law as a device of social designing. Significance allocated to sociological school of
law, is because of the way that by glancing through the focal point of this specific way of
thinking, the reaction of human conduct in a general public to law and how law has made
and shaped itself to suit the manner in which the general public reacts to it could be
perceived .There additionally could be cases we could watch, by which we could see
even the general public now and again requests for laws. this interaction of law and
society contributes and prompts advancement of one another.(Nishant Gupta,
UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, KNOWLEDGE ACRES,
P.O KANDOLI via PREMNAGAR, DEHRADUN (248007))

III. objectives:

1. To define sociological school of jurisprudence.

2. To define various theories of sociological school.

3. To review the application of sociological school in India with special reference to Joseph shine v.
Union of India case.1

IV. Research Problem:

In this research paper the research problem is to review the meaning and various theories of
sociological school and its application in India with special reference to Joseph shine v. Union of
India. The research gap is whether the judiciary really considered the sociological aspects when
they are passing judgment or not?

1. Introduction:-

The sociological school of jurisprudence, also known as the sociological approach to law, focuses
on the impact of society, social norms, and values on the development and interpretation of legal
principles. In the context of India, this approach is particularly relevant due to the diverse and

1
dynamic nature of Indian society.India is a country with a rich tapestry of cultures, religions,
languages, and traditions. The sociological school of jurisprudence recognizes the importance of
understanding how these diverse elements influence the legal system. Indian law is not merely a
set of abstract rules; it is deeply rooted in the social fabric of the country. The applicability of the
sociological approach in India can be seen in areas such as family law, where customs, traditions,
and societal norms play a crucial role in shaping legal practices. Similarly, issues related to caste,
gender, and religious rights require a sociological understanding to develop equitable legal
solutions. There are several cases where the court have taken measures to remove social issues
The Joseph Shine v. Union of India case2, is one of the leading case law in this list. The case was
decided by the Supreme Court of India in 2018, addressed several sociopolitical and legal issues.
One of the key issues it dealt with was the question of the validity of Section 497 of the Indian
Penal Code (IPC) and described how this provision are affecting the societal values.

2. Meaning of Sociological school of Jurisprudence:

The idea of Sociological School is to establish a relation between the Law and society. This
school laid more emphasis on the legal perspective of every problem and every change that take
place in society. Law is a social phenomenon and law has some direct or indirect relation to
society. Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized. In the words of Ehrlich, “At the present as well as at any there time, the
centre of gravity of legal development lies not in legislation, nor in the juristic decision, but in
society itself. Sociological School of Jurisprudence studies the relationship between the law and
sociology. Every problem or concept has two different aspects. One is sociological view and
other is a legal aspect. For example Sati. Sati was the ancient Indian practice of burning the
widow on her husband’s funeral pyre.

 The legal aspect: Sati Pratha was first abolished in Calcutta in 1798. A territory that fell
under the British jurisdiction. A ban on Sati was imposed in 1829 in the British territories
in India. In today’s time, the practice of Sati is banned under the Prevention Of Sati Act
(1987) which makes it illegal to force or encourage anyone to commit Sati.

2
(2019) 3 SCC 39
  The sociological aspect: In today’s era of escalating feminism and focus on equality and
human rights, it is difficult and amiss to digest the ruthless Hindu practice of Sati. Indeed,
the practice is outlawed and illegal in today’s India.

2.1. BACKGROUND

I. Sociological approach to the study of law was a reaction against the formal and abstract
approach of the analytical jurists and the pessimistic approach of the historical jurists. There was
a dire need to study law not in mere abstraction and isolation, but in its functional and practical
aspects.

II. credit for the emergence of this School of thought also goes to the doctrine of “Laissez –
Faire” which implies the policy of minimum governmental interference in the economic affairs
of individuals and society. This idea of capitalism only allowed the Government to interfere
during any conflicts or during any situation where an individual was forced against his/her will
and not in any other circumstance The Sociological school came out as a reaction against the
laissez-faire because sociological school advocates the balance between the welfare of the state
and individual interest. This led the States to expand the dimension of their activities to such
matters as health, insurance, education, old age security and other form of social and economic
aspects of welfare. Hence a new approach towards the study of law in relation to its ends,
purposes and functions for ordering and regulating relationship between individuals and groups
of individuals emerged.

2.2. Characteristic:

1. Sociological School of Jurisprudence is a school of thought that firmly believes that lawand
society are interlinked and the law impacts the society at large. If there is a change in the society
then that will directly or indirectly affect the law or the legal system and vice-versa.

2. law must be studied in action and not in textbooks.

3. Sociological jurists insist on the unity of the social sciences and the impossibility of thewholly
detached, self centered, self sufficing science of law.
4. It considers law as a social institution which can be consciously made and also
changed,modified or retained on the basis of experience. In other words, it synthesizes both
theanalytical and historical approach to the study of law.

5. Sociological Jurists lay emphasis upon social purposes and social goals and expectationswhich
the law subserves rather than upon sanctions and coercive character of law.

6. The fundamental tenet of this school according to Paton is that we cannot understand what a
thing is unless we study what it does.

7. According to Roscoe Pound the significant feature of sociological jurisprudence is that itlays
more emphasis on functional aspect of legal institutions, principles and precepts andregards law
as an instrument or technique of sub serving of individual and socialinterests

3. Jurist of the Sociological School of Jurisprudence:

3.1. Montesquieu (1689-1755): Montesquieu was the French philosopher and he paved the way
of the sociological school of jurisprudence. He was of the view that the legal process is somehow
influenced by the social condition of society. He also recognized the importance of history as a
means for understanding the structure of society and explained the importance of studying the
history of society before formulating the law for that society. In his book ‘The Spirit of Laws’,
he wrote: “law should be determined by the characteristics of a nation so that they should be in
relation to the climate of each country, to the quality of each soul, to its situation and extent, to
the principal occupations of the natives, whether husbandmen, huntsmen or shepherd, they
should have relation to the degree of liberty which the constitution will bear, to the religion of
the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.”

3.2. Auguste Comte (1786-1857): He is considered to be the founder of the science of

sociology. Comte’s method may be called 'Scientific Positivism'. He pleads for the application
of the scientific method to the science of sociology. Society is like an organism and it can
progress when it is guided by scientific principles. These principles should be formulated by
observation and experience of facts excluding all metaphysical and other like considerations. The
implications of Comte's theory are many. He greatly influenced the philosophical and scientific
thoughts of his time. In the field of legal theory, Comte's ideas inspired Durkheim, and who, in
his turn, inspired Duguit, a great sociological jurist.

3.3. Herbert Spencer (1820-1903): Organic Theory of the Society: He gave a scientific
exposition of the organic theory of society. He applied this evolutionary trend of society to
sociology. The organic theory has been very beautifully summarized by Prof. Allen. The inter-
dependence of organisms, in its sociological aspect, means the mutual relation of all members of
civilized society and the distribution of a sense of responsibility far wider than can be comprised
within the formula 'Sovereign and Subject'. It directed attention to the necessity of considering
the law in relation to other social phenomena."

3.4. Ihering: (1818-1892): Ihering was another sociological jurist known for his monumental
work ‘spirit of the law’. He was against the theory of individuals welfare and favours the factor
that social interest of society must have a priority over an individual’s interest and the purpose of
the law is to protect the interest of society, that is why his theory is known as ‘Jurisprudence of
Interest’ which emphasizes on the sociological aspect of Sociological School of Law. He
described the law in following aspects:

 Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives
birth to law and the role of law is to harmonize the conflicting interests of individuals for
the purpose of protection of interest of society. He gave importance to living law which
develops with the struggles of society. 2. Law as a means to serve Social Purpose:
According to him, the ultimate goal of the law is to serve a social purpose. It is the duty
of the state to promote social interests by avoiding various clashes between social and
individual interests. According to him, “law is coercion organized in a set form by the
state”, which means that he justified coercion by the state for the purpose of social
welfare. 3. Law as one of the means to control society: Law alone is not a means to
control society, there are some other factors also like climate, etc. Like Bentham, Ihering
favours the interest in the achievement of pleasure and avoidance of pain but for the
society, that’s the reason that Ihering theory is also known as the theory of “Social
Utilitarianism”.
So, according to the Ihering, the social activities of individuals can be controlled by the state by
means of coercion, reward and duty for achieving social control for the welfare of society.
Friedman said that “Ihering was declared as the father of modern sociological jurisprudence
because of his concept of law as one of the important effective factors to control social
organisms.”

Criticism: a)He Points Out Only the Problems, and not the Solution. b) Law Protects 'Will' and
not Purpose'.

3.5. Eugen Ehrlich (1862-1922): Eugen Ehrlich was considered as the founder of Sociology of law.
Sociology of law is the study of law from the sociological perspective. Ehrlich considered society as a
main source of the law. And by society, he means “association of men”. Ehrlich had written that “Centre
of gravity of all legal developments is not in legislation or judicial decisions but in society itself.” He
argued that society is the main source of law and better source of law than legislation or judicial
decision. Law is to be Found in Social Fact: The central point in Ehrlich's (1882-1992) thesis is that the
law of community is to be found in social facts and not in formal sources of law. He says:" At present as
well as at any other time the centre of gravity of legal development lies not in legislation, nor in juristic
science, nor in judicial decision, but in society itself. 'Living Law' is the Facts that Govern Social Life:
Ehrlich believed in the spontaneous evolution of law in the context of existing society. According to him,
law originates from existing institutions of marriage, domestic life, possession, contract, inheritance, etc.
They govern society through living laws. By living laws, he means that extra-legal control which
governs/regulate the social relations of man. In his opinion, the centre of gravity of legal development in
the present times or in the past lies neither with the juristic science, nor in judicial decisions, but in
society itself. His living law is the law which dominates social life even though it has not been known in
the form of enactments or decisions of courts. So, the scope of living law is under than the statuary law
of the state. For example, there may be some enactments enforced in the sense that courts may apply
them in the decisions in any issue but a community may ignore the enacted laws and lives according to
the rules created by their mutual consent, like dowry system in India.

Criticism: Makes no Distinction Between Legal and Other Social Norms:

3.6. Leon Duguit (1859-1928): Leon Duguit was a French Jurist and leading scholar of Droit Public
(Public Law). He was greatly influenced by the Auguste Comte and Durkheim. He gave the theory of
Social Solidarity which explain the social cooperation between individuals for their need and existence.
Duguit’s theory was based upon Auguste Compte’s statement that “the only right which man can
possess is the right towards his duty.” Social Solidarity is the feeling of oneness. The term ‘Social
Solidarity represents the strength, cohesiveness, collective consciousness and viability of the society.’
Leon Duguit’s Social Solidarity explain the interdependence of men on his other fellow men. No one can
survive without depending on other men. Hence the social interdependence and cooperation are very
important for human existence. The objective of the law is to promote Social solidarity between
individuals. And Leon Duguit considered that law as bad law which does not promote social solidarity.
Further, he also said that every man had the right and duty to promote social solidarity. For Example, in
India, the codified laws are followed by everyone. Hence, it promotes Social Solidarity.

Criticism: a) 'Social Solidarity' a Natural Principle b) Social Solidarity to be Decided by Judges:

He Confuses 'is' with 'Ought' C) He Overlooked the Growing State Activity d)
Inconsistencies in the Theory: Another weakness of Duguit's theory is its inconsistency at several
places. On the one hand, he expresses faith in the biological evolution of society, and on the
other hand, he vigorously attacks the idea of collective personality. He denied any personality to
state or group distinct from the individuals who constitute it.

3.7. Roscoe Pound (1870-1964): Pound was an American Legal Scholar. His view is that law
should be studied in its actual working and not as it stands in the book. He was one of the most
leading and important jurists who developed American sociological jurisprudence is a systematic
manner. He treated the law as a means of affecting social control and his contribution to
jurisprudence is great. The functional aspect of the law. Roscoe Pound gave stress on the
functional aspect of law. He defines law as containing the rules, principles, conceptions and
standard of conduct as a developed technique of social engineering. The main function of law is
to satisfy the maximum number of people. Not only this function but also to reconcile the
conflict in the interest of individuals and society.

3.7.1.Theory of Social Engineering:

Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the
Engineers. Engineers are required to use their engineering skill to manufacture new products.
Similarly, social engineers are required to build that type of structure in the society which
provides maximum happiness and minimum friction. According to Pound, “Law is social
engineering which means a balance between the competing interests in society,” in which
applied science is used for resolving individual and social problems. Social Engineering is
balancing the conflicting interest of Individual and the state with the help of law. Law is a body
of knowledge with the help of law the large part of Social engineering is carried on. Law is used
to solve the conflicting interest and problems in society. He mentioned that everybody has its
own individual interest and considered it supreme over all other interest. The objective of the law
is to create a balance between the interests of the people. For Example, Article 19 of the Indian
Constitution provides ‘Rights to speech and expression’ but on the other side, State put some
restriction on this right. And when the conflict arises between Individual right and State’s
restriction, then the law comes to play its part. And solve the conflict between the interests. He
describes that there are various kinds of interests in society and the main task of law is to make
all possible efforts to avoid conflict between them. Thus, courts, legislature, administrators and
jurists must work with a plan and make efforts to balance these three categories: Public, Private
and Social Interests. Interest Theory Roscoe Pound in his interest theory mentioned the three
kinds of interest. To avoid the overlapping of the interests, he put boundaries and divide the
kinds of interests.

 Individual/ Private Interest:

These are claims or demands involved from the standpoint of the individual life which consists
of interest of personality, interest in domestic relations and interest of substance. The
individual’s interest is known as private interest like physical integrity, reputation, etc. and
they’re protected by the law of crime, torts and Contract Law, etc. Domestic relations of a person
such as a husband and a wife, parents and children, etc. are protected by Personal Law. The
interests of the property, succession, contractual relations, testamentary relations, etc. are
protected by Property Laws.

 Public Interest:

These are the claims or desires asserted by the individual from the standpoint of political life
which means every individual in a society has a responsibility towards each other and to make
the use of things which are open to public use. Main public interest is interest in the preservation
of States. Administration of trust, charitable contracts, protection of the environment, regulation
of public employment, etc. are being protected by the States.

 Social Interest:

These are the claims or demands in terms of social life which means to fulfil all the needs of
society as a whole for the proper functioning and maintenance of it. Interest in the preservation
of general peace, health, the security of transaction’s, preserving social institutions like religion,
politics, economic. Interest in preservation of peace and health. Preserving social institutions of
religion, politics and economics. Preserving certain prohibiting acts like prostitution, gambling,
etc. Conservation of social and natural resources. General progress including economic, political
and cultural areas. E.g.- Freedom of Trade and Commerce, Speech and Expression, etc. Interest
to make a political, physical, social and economic life to promote personality.

3.7.2. Jural Postulates by Roscoe Pound:

According to Roscoe Pound, every society has certain basic assumptions for proper order and
balance in society. These assumptions are implied and not in expressed form and are called as
Jural Postulates of the legal system of that society. These assumptions of man related to the
reference for what they want from the law or legal system or we can say that it is the expectation
of a man from the law. He has mentioned five kinds of jural postulates:

1. In a civilized society, man must be able to assume that others will not commit any intentional
aggression on him. For Example, Assault, Wrongful restraint, Battery, etc.

2. In a civilized society, man must be able to assume that they must control for beneficial
purposes. E.g.- control on whatever they discover or create by their own labour(Law of patent).

3. In a civilized society, man must be able to assume that those with whom they deal as a
member of societies will act in good faith. E. g. - contract.

4. In a civilized society, man must be able to assume that the people will act with due care and
will not cast unreasonable risks of injury on others. E. g. - tort.

5. In a civilized society, man must be able to assume that certain people must restrain from
doing harmful acts under their employment and agencies which are otherwise harmless to them.
E. g. - strict liability.

So, these Jural Postulates are a sort of ideal standards which law should pursue in society for
civilized life and with the changes in society, the jural postulates may emerge or originate in
society.

Criticism: a) 'Engineering' Nor a Happy Word; 'Engineering' Ignores an Important Part of Law
b) Classification of Interest not Useful.
4. Sociological School of Jurisprudence and Joseph shine v. Union of India case3:

In December 2017, a Public Interest Litigation petition was filed challenging the constitutional validity of
the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. A three Judge
Bench, headed by the then Chief Justice of India, Dipak Misra, had referred the petition to a five Judge
Constitution Bench, conceding that the law did seem to be archaic. and five judges bench
decriminalized the adultry. And struck down section 497 of I.P.C.

4.1. Social Issues Raised in that case:

1. That the provision criminalizes adultery on classification based on sex alone which has no
rational nexus to object to being achieved. The consent of the wife is immaterial By which
society tried to oppressed the voice of women.

2. that provision is based on the notion that a woman is the property of the husband. and this
provision says if the husband gives consent or connive then adultery is not committed. That
means the society yet running on the traditional way set by society and if we want to protect the
society from this kind evil concept then we must have to curtail it.

3. that the provision is unconstitutional as it undermines the dignity of a woman by not

respecting her sexual autonomy and self-determination. The autonomy of women is not a new
thing it is a long time wish of society.

4. The provision tried to establish a paternalistic society. Where man is on dominant position.
And women have to act as per the direction of man.

5. The respondents contended that adultery is an offence which breaks the family relations and
deterrence should be there to protect the institution of marriage.

6. The respondents claim that adultery affects the spouse, children and society as a whole. It is
an offence committed by an outsider with full knowledge to destroy the sanctity of marriage.

4.2. sociological aspects in the judgement:

3
(2019) 3 SCC 39
1. The five Judge Bench unanimously, in four concurring judgments, held that the law was
archaic, arbitrary and paternalistic, and infringed upon a woman's autonomy, dignity, and
privacy.

2. The court quoted that, In 2015, the South Korean Constitutional Court, by a majority of 7-2
struck down Article 241 of the Criminal Law; a provision which criminalized adultery with a
term of imprisonment of two years as unconstitutional. In doing so, South Korea joined a
growing list of countries in Asia and indeed around the world that have taken the measure of
effacing the offence of adultery from the statute books, considering evolving public values and
societal trends.4

3. The decision of this courts reflect how the treatment of the law towards adultery has evolved
with the passage of time and in light of changing societal values.

4. The court has been described many countries judgement where they already decriminalized
the adultry and pointed out several reasons :

i. This section affecting the societies equality concept as here only famale will be punished but
male will not though they engaged same act. It was further held that Section 497 disregarded
substantive equality as it reaffirmed the idea that women were not equal participants in a
marriage, and that they were not capable of independently consenting to a sexual act in society
and a legal system that treated them as the sexual property of their spouse.

ii.The section establishing a Paternestic society where the society tries to give the men a
dominant position. Thus we need to erase this archaic concept from the chapter of law otherwise
it will fall bad impact on our society. Justice D.Y.Chandrachud reiterated that misogyny and
patriarchal notions of sexual control of a woman found no place in our constitutional order
which recognises dignity and autonomy as intrinsic to a person.

iii. The court also contended that, the traditional society are just using woman as a sexual
product where they only used by the man. Where the consent of woman does not matter.

4
Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at:
http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do
iv. The privacy of women also does matter. The Court reaffirmed sexual privacy as a natural
right under the Constitution. Justice D. Misra opined (for himself and Justice A.M. Khanwilkar)
that treating adultery as a crime was an intrusion into the extreme privacy of the matrimonial
sphere.

These are the causes to decriminalization of adultry the court opened that if the law can change
itself as per society then why not the society can change perse as per law.although the court
decriminalized the adultry but didn't remove it from the ground of divore as court thinks it is
necessary to uphold moral and societal balance.

4.3. Previous judgements referred by this judgement:

Yusuf Abdul Aziz vs. State of Bombay5

In this case, the constitutionality of Section 497 was challenged on the grounds that it violates Article 14
and Article 15, by saying a wife cannot be a culprit even as an abettor. The 3 judge bench upheld the
validity of the said provision as it is a special provision created for women and is saved by Article 15(3).
And Article 14 is a general provision and has to be read with other Articles and sex is just classification,
so by combining both it is valid.

Sowmithri Vishnu v. Union of India & Anr.6

In this case, a petition was filed under Article 32 challenging the validity of Section 497 of IPC. The
challenge was based on the fact that the said provision does not provide the right to a woman to
prosecute the woman with whom her husband has committed adultery and hence is discriminatory.
The 3 judge bench in this case also upheld the validity by stating that extending the ambit of offence
should be done by the legislature and not by courts. The offence of breaking a family is no smaller than
breaking a house, so the punishment is justified. The court accepted that only men can commit such an
offence.

Revathi vs. Union of India7

5
(1954) SCR 930

6
(1985) Supp SCC 137

7
(1988) 2 SCC 72
In this case, the court upheld the constitutional validity of Section 497 read with Section 198 by stating
that this provision disables both wife and husband from punishing each other for adultery hence not
discriminatory. It only punishes an outsider who tries to destroy the sanctity of marriage. And thus it is
reverse discrimination in ‘favour’ of her rather than ‘against’ her.

Kalyani vs. State through Inspector of Police and another 8

The constitutionality of Section 497 did not arise in this case but it says that mere fact that appellant is a
woman makes her completely immune to the charge of adultery and she cannot be proceeded against
for that offence.

Changes in Society after this Judgement:

1. Now the equality between man and woman concept is being more strengthen in archaic society.
"Right to choose sexual partner right" has been evolved which brings a magnificent change in
society for that woman have autonony in society to choose their sexual partner on their own
pace. before that maximum numbers of sexual partner(husband) are chosen by their parents
whether they have consent on it or not doesn't matter.

2. Before this there were concept of paternalism in some traditional society they thinks women
are the estate of their husband. And a dominance position had always been given to the man. But
after condemnation of this thing by the apex court. The society now trying to avoid this kind of
wrongful practices.

3. Though the court decriminalized adultery but didn't remove adultry from ground of divorce
and now it is civil wrong. Which was really did a great work to balance the society on one side
they protected the rights of women and on other side they maintained the notion of "marriage is
a sacred relation". Which is really an appreciable effort by appex court and at last they had
balanced equality and decency in the society.

5. Present value of sociological school:

Howsoever divergent the views of various jurists of Sociological jurists may be, all of them
proceed upon common point that law must be studied in relation to society and this view had a
great impact and in fact is a great motivating factor for modern legal thought. Today, no one has
authority to make arbitrary laws and especially in welfare states, the legislation is aimed at

8
(2012) 1 SC 358
uplifting the weaker sections of the society and to prevent exploitation of socially and
economically backward sections of the society. When we Indian perspective, we can say that
before independence, law emanated from the British soil and had no connection with the Indian
roots. But after independence, the main task of laws, as enshrined in the Preamble to the
Constitution, is to achieve social, economic and political justice. Indian Constitution has
specified special provisions for weaker sections of the society. Eradicating religion, race, caste,
sex, descent, place of birth or residence specific discriminations, overcoming the malingering
effects of such distinctions, achieving a true measure of pluralism and diversity without sectoral
domination and creating an inclusive civil society moving towards the preambuler goals of
Justice, Liberty, Equality and Fraternity, are the mandate of our Constitution. It has become clear
to the law makers and law administrators that old analytical approach is out of date now and the
law must serve and cater to the needs of the

6. Conclusion and Suggestions:

It is to be stated that howsoever divergent the views of various sociological jurists may appear.
they have one common point that the law must be studied in relation to society This view has a
great impact on modern legal thought. But it should not be taken to mean that other methods
have completely ceased to exist Still there are advocates of natural law thought with a 'variable
content'. There are Catholic jurists who plead for maintaining a close relationship between law
and morals. But these approaches are. in many respects, basically different from earlier
approaches of type on the subject and are influenced by the sociological approach.The
sociological school of jurisprudence can be applied in India to enhance the understanding and
development of its legal system.As we have already seen that in Joseph shine v. Union of India
case9. This is a landmark decision was significant in recognizing and upholding the rights of
individuals in marital relationships and addressing gender inequality within the context of
adultery laws in India. The case marked a pivotal moment in Indian jurisprudence by promoting
gender justice and individual autonomy in society. In conclusion, it's important to recognize that:

Relevance to Indian Society: India is a diverse and rapidly changing society with complex
social dynamics. Sociological jurisprudence can help in adapting legal principles to these
changing societal norms and values.
9
(2019) 3 SCC 39
 Customary Practices: India has a rich tradition of customary laws and practices.
Sociological jurisprudence can aid in incorporating these traditions into the formal legal
system, promoting social cohesion.

Social Justice: With a focus on social justice and equality, the sociological approach can
assist in addressing issues of discrimination, caste-based hierarchies, and gender inequalities
that persist in India.

Legal Reforms: Sociological jurisprudence can guide legal reforms and policy-making by
considering the actual impact of laws on society, enabling more effective and just legal
frameworks.

Interdisciplinary Approach: Collaboration between sociologists, legal scholars, and

policymakers can lead to more informed and balanced legal decisions.

Research and Collaboration: Encourage legal scholars to collaborate with sociologists to

conduct research on the social impact of laws and policies.

Legal Education: Integrate sociological jurisprudence into legal education to develop a more
holistic understanding of the law.

Incorporating the sociological school of jurisprudence in India can contribute to a more

responsive, equitable, and effective legal system that aligns with the dynamic and diverse nature
of Indian society

Bibliography/Webliograhy
1. Rao, C.N. Shankar (1994), “ Sociology”, New Delhi: S. Chand and Company Ltd
2. Tripathi, B.N. Mani (2018), Jurisprudence Legal Theory, 16th Edition, Allahabad Book
Agency.
3. Advance jurisprudence, available at:
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/01._advanced__jurisprudence/
15._sociological_perceptions_of_law/et/8125_et_et.pdf( last visited 4th Nov 2023).
4. Sociological School of Jurisprudence, Available at:
https://blog.ipleaders.in/sociologicalschool-of-jurisprudence ( last visited 4th Nov 2023).
5. Legal Studies, available at:
http://cbseacademic.nic.in/web_material/doc/Legal_Studies/XI_U2_Legal_Studies.pdf ( last
visited 4th Nov 2023).
6. Background and Characteristics of sociological School, available at:
https://www.google.com/amp/s/indianlawportal.co.in/background-and-characteristics of-
sociological-schools/amp/( last visited 4th Nov 2023).
7. Sociological school, available at: https://theindianlaw.in/sociological-school-of-
jurisprudence/( last visited 4th Nov 2023).
8. Sociological school of jurisprudence, available at: https://legalvidhiya.com/sociological-
school-of-jurisprudence/#:~:text=The%20idea%20of%20Sociological%20School,or
%20indirect%20relation%20to%20society.( last visited 4th Nov 2023).
9. Sociological Jurisprudence with Indian Perspective, available at:
https://udrc.lkouniv.ac.in/Content/DepartmentContent/SM_22454e1e-c719-4afe-add9-
39636a677cf4_30.pdf( last visited 4th Nov 2023).

10. Impact of sociological school on present legal system, available at:

http://burnishedlawjournal.in/wp-content/uploads/2020/09/IMPACT-OF-SOCIOLOGICAL-
SCHOOL-ON-PRESENT-LEGAL-SYSTEM.-By-Nishant-Gupta.pdf( last visited 4th Nov 2023).

11. Sociological jurisprudence in India, available at:

https://www.studocu.com/in/document/university-of-lucknow/bba/sociological-jurisprudence-
in-india/12362897( last visited 4th Nov 2023).