The Rashtriya Swayamsevak Sangh (RSS), which wields considerable influence on national policymaking and conversation, recently commented that raising the legal age of marriage for girls should be left to society, referring to a proposed legislation to raise the minimum age for marriage for women from 18 to 21 years.
Such perspectives revive the debate on the law’s role in social change – a debate that has raged since at least World War II, when the use of legislation as a tool of social engineering gained attention.
Classical social theorists such as Emile Durkheim, Max Weber, and Karl Marx viewed the law as a diverse and subjective concept, having a multiplicity and complexity along with an interconnectedness to social life. The emergence of welfare States and welfarism further affirmed this. This trend accelerated in the postmodern era, when noted socio-legal theorist Philip Selznick observed that “modern law has become increasingly responsive to society’s needs”.
Opposing views also existed, where the law was considered a product of society and only changed when social demands changed. German philosopher Jurgen Habermas considered the law’s intrusion in everyday life “a curtailment of individual autonomy”, and said that welfarism had resulted in the colonisation of life, casting a “tighter net of legal norms on individual’s life”. W Friedman, a German-American legal scholar, also underlined the ways in which laws were crafted at the time, noting that if a piece of legislation was made by the choice of only a small group of individuals, it was bound to fail.
Feminist theory injected a new dimension into this debate. Feminist philosophers of law such as Catherine MacKinnon and Martha Minow criticised the conceptualisation of rule of law in terms of coherence and consistency, saying that it only reinforced the status quo, legitimised existing power relations, and perpetuated sexist socialisation through a systemic bias.
Which argument is more plausible? In India, two current issues offer themselves as touchstones.
One is the issue of raising the minimum marriageable age of women. The government argues that amending the existing Prohibition of Child Marriage Act, 2006 will prevent underage marriages, and, consequently, accrue better health, educational and nutritional outcomes for girls. But many experts say this is flawed, because it doesn’t take into account social realities. Oxfam India, for example, said the law will end up being counterproductive, if the factors that drive families to resort to such social practices, especially, the disadvantaged ones, are not addressed.
The second issue is the criminalisation of marital rape, which is being adjudicated in the Delhi High Court at present. From a legal point of view, many have opposed it, contending that it will be grossly misused, and that it will be a difficult task to establish burden of proof. But women legal activists argue that since any law is open to misuse, it cannot be a logical deterrent to the enactment of a valid legislation. They point out that successive National Family Health Surveys have revealed increasing incidents of spousal violence and say that it is more important to see whether women will be able to get over the traditional mindset and file complaints against their erring husbands.
In India, using the law to advance social change has been a political consensus since Independence. Several pro-women legislations have been drafted to act as norm-setters and accelerate social change, but with mixed results. Flavia Agnes, a feminist legal activist, for example, said that “laws, old and new, are, more or less, structured to operate against women’’. Poonam Muttreja, a public policy expert, also feels that for a law to succeed in its purpose, more practical ways should be adopted to enhance women’s agency, autonomy, along with efforts in capacity-building in education and employment.
The bottom line is that Indian society can transition to a gender-just society with the new ideas of liberalism, only if an enabling societal environment is nurtured. The Indian legal system, going beyond the law’s instrumentalist attitude, can then become more responsive to social reasoning for equality and empowerment.
Archana Datta is former director-general, Doordarshan, and All India Radio; and former press secretary, President of India
The views expressed are personal