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CONTINGENCY OF LAW: HOW IT HELPS TO DEAL WITH CHANGING TIMES

INTRODUCTION

Law is an important concept that ensures the safety and security of citizens in society. However, it is remarkable to note that this concept of law has not remained static over time, but has undergone drastic changes in response to changing social, political, and economic circumstances. This transforming nature of the law in response to societal changes emphasizes the law’s contingent nature. The concept of law’s contingency is important in demonstrating that law is not simply a set of abstract ahistorical and universal principles that exist in a vacuum, but rather exists within human societies and changes to them are rationally and logically connected to them.[1]

The idea of the contingency of law does not relate to legal developments that are arbitrary or random, but rather to those that are rationally and logically connected to other types of developments[2]. Like other historical changes, the speed is frequently slow, with old forms coexisting for a time with new ones.

The concept of the contingency of law is a recent development and only after the 1970s did the concept of the contingency of law begin to take shape. The origins of legal doctrines and institutions were a major focus of legal historians before the 1970s, who placed less emphasis on change and contingency and more on continuity. Law, however, cannot be separated from the other social, economic, and political variables acting, and the 1970s brought about a change in the approach of legal historians. In the common law regime, the harbinger of change was Morton Horwitz who in his book, The Transformation of American Law 1760-1780[3], contended that substantial alterations to common law doctrines were initiated by the new political and economic ideas of the late eighteenth and nineteenth century. Similarly in the context of tort and contract law doctrine, Horwitz and Posner, both contended that the major changes in these doctrines were initiated in response to the changing economies.

ILLUSTRATIONS TO SHOW THE CONTINGENCY OF LAW

The best example of how different social, economic, and political events contribute to the creation of legal doctrines in response to the changing situations in society is provided by the development of article 21 of the Indian Constitution[4], which protects life and individual freedom.

“No person shall be deprived of his life or personal liberty except according to the procedure established by law,” states Article 21. When article 21 was first put into practice, it became clear that the phrase “according to the procedure established by law” did not include the concepts of natural justice. But over time, as social conditions changed and new social demands emerged, it was determined in the Maneka Gandhi case[5] that fairness, justice, and reasonableness are essential components of the protection of life and liberty embodied in Article 21 of the Constitution. The circumstances surrounding the Maneka Gandhi case were a representation of what the populace went through during the 1975–1977 emergency, which resulted in a shift in public opinion and led judiciary to the adopt a new and wider approach to address the issue related to article 21 of the constitution to protect the life and liberty of the individual.

Another illustration of the principle of the contingency of law is the Juvenile Justice Act. Juvenile Justice is an act that unifies and modifies the legislation pertaining to children who are accused to be in violation of the law and are found to be such, as well as children who need care and protection by meeting their fundamental needs. It was initially passed in 1986[6] and established the first centralized, uniform Juvenile Justice statute.

In 1992, when the United Nations Conventions on the Rights of the Child were ratified, it was time for the Indian government to pass a law that complied with those requirements. As a result, the Juvenile Justice (Care and Protection of Children) Act, of 2000[7] was passed, replacing the Juvenile Justice Act of 1986.

The Juvenile Justice Act of 2000 was amended in 2015[8] to meet contemporary standards, particularly in light of the Mukesh v. State (NCT of Delhi)[9] event, also known as the Nirbhaya Delhi gang rape case. A juvenile was also engaged in the Nirbhaya case, but because of the juvenile procedure outlined in the Juvenile Justice Act of 2000, he was acquitted. This sparked opposition to his release throughout the country and raised concerns about the statute that was in place at the time (Juvenile Justice Act, 2000). The Rajya Sabha adopted the Juvenile Justice Bill 2014 as a result of the nationwide uprising, which classified crimes into three categories: petty offences, serious offences, and heinous offences. It also brought about significant reform in juvenile legislation, particularly in response to the uproar caused by the Nirbhaya case, which allowed for the conviction of children who are older than 16 and are implicated in horrific crimes. With the implementation of the new amendment, a child who committed heinous crimes was classified as an adult and no longer qualified for protection under the 2015 Juvenile Justice Act.

The Juvenile Justice Act was once more amended in 2021[10] to include provisions for child adoption and protection which was brought in response to the National Commission for the Protection of Child Rights examination of the Child Care Institutions, which revealed that 90% of childcare care facilities under Nongovernmental Organisation management lacked registration even after the 2015 amendment took effect.  The National Commission for the Protection of Child Rights’ findings prompted calls for increased child protection, which the amendment of 2021 intended to address.

CONCLUSION

The examples provided above effectively convey the contingent nature of the law. In the context of article 21, it was the societal modifications brought about by the emergency measures that changed how article 21 was interpreted. Similarly, to this, it can be observed that the Juvenile Justice Act has undergone adjustments over time in order to meet the shifting needs of society. For instance, the 2015 amendment was largely the result of public upheaval over the Nirbhaya case.

The contingent nature of the law and how numerous social variables play a significant influence in the evolution of legal doctrines have been emphasized throughout the discussion. This discussion demonstrates how the law cannot exist as a distinct entity without the other social forces. Therefore, it must be noted that in order to obtain a comprehensive understanding of the evolution of legal doctrines, a number of social, economic, and political aspects must also be taken into consideration as they have a significant impact on the development of law over time.

Author(s) Name: Aniket Yadav (National Law University, Delhi)

References:

[1] Jim Phillips, “Why Legal History Matters”, 1 November 2010, Victoria University of Wellington law review

[2] Ibid

[3] Morton J Horwitz, “The Transformation of American Law”, 1780-1860 (Harvard University Press, Cambridge, 1977).

[4] The Constitution of India, art. 21

[5] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[6] Juvenile Justice Act 1986

[7] Juvenile Justice Act 2000

[8] Juvenile Justice Act 2015

[9] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1

[10] Juvenile Justice Act 2021