Friday, 2 October 2015


What is Social Engineering?

It is a discipline in political science that refers to efforts to influence people attitudes and social behaviours on a large scale, whether by governments or private groups. In the political arena, the counterpart of social engineering is political engineering.

For various reasons, the term has been imbued with negative connotations. However, virtually all law and governance has the effect of changing behaviour and can be considered "social engineering" to some extent. Prohibitions on murder, rape, suicide and littering are all policies aimed at discouraging undesirable behaviours. In British and Canadian jurisprudence, changing public attitudes about behaviour is accepted as one of the key functions of laws prohibiting it. Governments also influence behaviour more subtly through incentives and disincentives built into economic policy and tax policy, for instance, and have done so for centuries.

In practice, whether any specific policy is labelled as "social engineering" is often a question of intent. The term is most often used by libertarians, free-market thinkers, and traditionalists as an accusation against anyone who proposes to use law, tax policy, or other kinds of state influence to change existing power relationships: for instance, between men and women, or between different ethnic groups. Political conservatives in the United States have accused their opponents of social engineering through the promotion of political correctness, insofar as it may change social attitudes by defining "acceptable" and "unacceptable" language or acts. The right (i.e. the social conservative movement) has itself been accused of social engineering due to its promotion of Abstinence-only sex education, the English-only movement, Sodomy laws and state sponsored school prayer.[1]

Roscoe Pound and its theory of social engineering:-
Roscoe Pound was born in Lincoln Nearsaka (New Jersey ) in 1870 he was an auxiliary judge of the Supreme Court of Nebrasaka for a short period of two years during 1901-1903. Thereafter, he worked as a Dean of the Law school at Nebraska. He also served as a Professor of Jurisprudence in Harvard University and was the Dean of its law school. He was a prolific writer and his major works include the Spirit of the Common Law (1921); An Introduction to the Philosophy of Law (1922); Interpretations of Legal History (1923); Law and Morals (1926); The Formative era of the American Law (1938); Contemporary Juristic Theory (1940); Administrative Law—Its Growth, Procedure and Significance (1942); Social Control Through Law (1942); The Task of Law (1944), etc.
Roscoe Pound was one of the most leading and influential jurists who developed the American Sociological Jurisprudence in a systematic form. He emphasised on inter disciplinary approach to law so that rule of law and life may flow together. He treated law as a means for affecting social control and did not believe in the abstract or mechanical application of law. He is considered to be the father of American Sociological Jurisprudence for his unique contribution to the science of law and legal philosophy. The emergence of Realist School in America in later years owes its origin to Pound’s functional jurisprudence and theory of interests.
The contribution of Roscoe Pound to sociological jurisprudence may be studied under the following heads:—
1. Emphasis on Functional Aspect of Law:
Roscoe Pound added new dimensions to sociological school of jurisprudence. His approach to sociological jurisprudence was different in the sense that he attempted to cover social-life as a whole unlike his predecessors who considered law as the main subject of study and society is merely subsidiary to it. Pound laid greater stress on functional aspect of law. This is why his approach has been termed as ‘functional school` by some writers. He defined law as containing "the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art." He thus considers law as a means of a developed technique and treats jurisprudence as a ‘social engineering’. The end of law according to him is to satisfy a maximum of wants with a minimum of friction or confrontation. Elaborating the functional aspect of law, Roscoe Pound stated that the function of law is to reconcile the conflicting interests of individuals in the community and harmonise their inter-relations. He termed this as ‘social engineering’.
2. Pound’s Theory of Social Engineering:-
Roscoe Pound conceived law as a ‘social engineering’, its main task being to accelerate the process of social ordering by making all possible efforts to avoid conflicts of interest of individuals in the society. Thus courts, legislators, administrators and jurists must work with a plan and make an effort to maintain a balance between the competing interests in society. He enumerated the various interests which the law should seek to protect and classified them into three broad categories, namely,[2]

(a) Private Interests:-
Private interests to be protected by the law are-
(i) Individual‘s interests of personality, namely, interests of physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by law of crimes, torts, contracts and constitutional laws.
(ii) The interests of domestic relations of persons such as husband and wife, parent and children, marital life.
(iii) The interests of property, succession, testamentary disposition, freedom of contractual relations, association etc.

(b) Public Interests:-
Public interests to be protected by the law are-
(i) Interests in the preservation of the State as such;
(ii) State as a guardian of social interests such as administration of trusts, charitable endowments, protection of natural environment, territorial waters, sea shores, regulation of public employment etc.

(c) Social Interests
Social interests to be protected by the law are-
 (i) Interest in the preservation of peace and order and maintaining general security;
 (ii) Interest in preserving social institutions like marriage and religious institutions;
(iii) Interest in preserving general morals by counter-acting corruption, discouraging gambling and invalidating transactions repugnant to current morality;
(iv) Interest in conserving social resources;
(v) Interest in general progress which is to be achieved by freedom of education, freedom of speech and expression, freedom of property, trade and of commerce; and
(vi) Interest in the promotion of human personality.[3]

Pound has not only listed the interest recognised by law but he has also considered the ways by which they are to be secured. These consist of the device of legal persons and attribution of claims, duties, liberties, powers and immunities. There is also the remedial machinery behind them, which aims sometimes at punishment, sometimes at redress and sometimes at prevention. Pound has also maintained that a balance of interest is to be strike. Pound further says that the class to which an interest belong and its relative weight is subject to change from one class to another and from time to time depending upon political conception acceptable to a society at a particular time.

Pound’s theory of law has influenced the lawyers, judges and the writers of twentieth century. As he has rightly considered law as for more than a bundle of abstract norms, he considers it more as process of balancing of interest for removing conflicts and for rendering the greatest benefit with the minimum of conflicts. For him what is most needed is that jurisprudence should seek an improvement of the law in the light of the social needs of the time, so that law may procure the greatest good of the largest number in society[4].

3. Jural Postulates of Roscoe Pound:-
In order to evaluate the conflicting interests in due order of priority, Pound suggested that every society has certain basic assumptions upon which its ordering rests, though for most of the time they may be implicit rather than expressly formulated. These assumptions may be called as ‘jural postulates’ of the legal system of that society. Pound has mentioned five jural postulates as follows:-
Jural Postulate I - In civilised society men must be able to assume that others will commit no intentional aggression upon them.
Jural Postulate II. - In a civilised society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use what they have created by their own labour and what they have acquired under the existing social and economic order.
Jural Postulate III - In a civilised society men must be able to assume that those with whom they deal as a member of the society will act in good faith and hence-
(a) Will make good reasonable expectations which their promises or other conduct reasonably create;
(b) Will carry out their undertaking according to the expectations which the moral sentiment of the community attaches thereto;
(c) Will restore specifically or by equivalent what comes to them by mistake, or failure of the pre-suppositions of a transaction, or other unanticipated situation whereby they receive at other’s expense what they could not reasonably have expected to receive under the actual circumstances.
Jural Postulate IV - In a civilised society men must be able to assume that those who engage in some course of conduct will act with due care not to cast an unreasonable risk of injury upon others.
Jural Postulate V - In a civilised society men must be able to assume that others who maintain things or employ agencies, harmless in the sphere of their use but harmful in their normal actions elsewhere and having a natural tendency to cross the boundaries of their proper use will restrain them and keep them within their proper bounds.
Pound confessed that these jural postulates are not absolute but they have a relative value. They are a sort of ideal standards which law should pursue in society. They are of a changing nature and new postulates may emerge if the changes in society so warrant. Thus, the jural postulates propounded by Roscoe Pound provide guidelines for righteous and civilised life and they also seek to strike a synthesis between reality and idealism as also power and social accountability of men in the community.[5]

Contribution of Pound’s theory:-
Pound’s contribution to jurisprudence is great. He has emphasised ‘engineering’ but has not forgotten the task of maintaining of balance. He has taken a middle way avoiding all exaggeration but his approach has been experimental. His emphasis on studying the actual working of legal rules in the society, the importance of social-research for good law-making and pointing out the great constructive function which the law is to perform are very valuable contributions to jurisprudence. Pound’s influence on modern legal thought is also great and it is under light of his theory among other things, that the subject is being studied.
Criticism of Pound’s theory:-
Pound’s theory of social engineering has been criticised for the use of term “engineering”, which equates society to a factory-like mechanism. Dr. Allen has criticised in Pound’s theory ‘the utilitarian trend’ as it confines the interpretation of wants and desires to only material welfare of individual’s life completely ignoring the personal freedoms which are equally important for a happy social living.

Another criticism of his theory is that emphasis on ‘engineering’ ignores an important part of law which develops and evolves in the society according to social needs and the law simply recognises or approves it. The dynamic feature of law is undermined.

It has also been said that Pound’s theory of interest has not much significance in a pluralistic society where there are linguistic, ethnic, and religious minorities, having diverse interests.

Friedmann has stated that classification of interests is not useful. He says "what is the value of such classification? In the first place it pursues a line of thought originated by Ihering and Bentham that is the approach to law as a means to a social end and as an instrument in social development. In the second place, such a classification greatly helps to make inarticulate premises articulate, and to make the legislator as well as teacher and practitioner of law conscious of the principles and values involved in any particular issue. It is thus an important aid in the linking of principle and practice. There is, however, as Pound himself recognises, the danger of an implicit evaluation in the grading of interests as individual, public or social. What are an individual and what is a social interests is itself a matter of changing political conceptions. Many interests come under different categories. Pound’s paramount four legal policies for the protection of general progress, for example, would today be hotly contested both in practice and theory. Freedom of property is subject to increasing limitations according to the prevailing social philosophy and ranging from the transfer of the means of production to the community to prevention of the abuse of the rights.[6]

The reservation policy in India is nothing new, as it has existed in our society from the time of the British rule and the princely states. The motive of having reservation then was the eagerness to modernize through the promotion of education and industry and maintaining unity among themselves. Reservation continued in India even after having achieved independence from the British.
India was a country with a very rigid cast based hierarchal structure where the highest casts enjoyed most of the benefits while the lower casts were looked down upon by the higher casts. The majority of the population was backward socially, economically, educationally and politically. The backward classes were classified as the scheduled casts {SC} and scheduled tribes {ST} and other backward classes {OBC}. By 1947 India became an independent nation. It was at this point that the constitution of India was framed and then the framers took forward the interest of the backward classes by having Article-46 in the Constitution. But there is an interesting fact that needs to be seen, that is the inclusion of provisions of reservation in the Constitution of India based on cast in educational institutions was after the intervention of the Supreme Court in 1951 in the case of State of Madras Vs Champakam Dorairajan where the court struck down the classification of reservation being based on cast, race and religion for the purpose of admission to educational institutions as unconstitutional.
Article-46 – This Article stated that the state should promote with special care the educational and economical interest of the weaker section of the people, also protecting them from social injustice and all forms of exploitation. [7]
Then came the Mandal Commission, which was established in India in 1979 by "identify the socially or educationally backward." It was headed by Indian parliamentarian Bindheshwari Prasad Mandal to consider the question of seat reservations and quotas for people to redress caste discrimination, and used eleven social, economic, and educational indicators to determine backwardness. In 1980, the commission's report affirmed the affirmative action practice under Indian law whereby members of lower castes (known as Other Backward Classes (OBC) and Scheduled Castes and Tribes) were given exclusive access to a certain portion of government jobs and slots in public universities, and recommended changes to these quotas, increasing them by 27% to 49.5%.
This report was duly tabled and discussed in parliament and was under examination till1990. It was 7th august 1990, that then the Prime Minister V.P Singh made the announcement that the Govt. was accepting the recommendations of the Mandal Commission i.e. the reservation upto 27% of  the jobs in all the central offices and public institutions.
 Events unfolded rapidly thereafter. The first official memorandum was issued in this regard for 27% reservations in the central services in the public sector undertakings for the socially and educationally backward classes. So several students burn themselves, government fell, Prime ministers came and went down. One year later, the P.V Narsimha Rao issued the Second Official memorandum which was for the preference within this 27 %, to the poorest sections of SEBC’s, and for the 10% reservations for economically backward sections of the people not covered by the existing schemes of reservations.[8]
So The Supreme Court of India was seized of the matter in the backdrop of widespread student unrest and riots occurring in every part of the country, with nearly every campus in India set up in flames. On Sept 1991, the Supreme Court transferred itself all the writ petitions challenging the implementation. With a view to settle the law, in an authoritative way, a special branch of nine judges of Supreme Court, for the first time was constituted in Indra Sawhney v UOI[9], which is popularly known as Mandal commission case. The majority opinion of the Supreme Court on
various aspects of reservation provided in Art 16(4) may be summarized as follows:-
1. Backward class of citizen in Article 16(4) can be identified on the basis of caste and not only on the basis of economic criterion.
2. Article 16(4) is not an exception to Article 16(1). It is an instance of classification. Reservation can be made under Article 16(1).
3. Backward classes in Article 16(4) are not similar to as socially and backward as mentioned in Art 15(4)
4. In order that the backward classes are given adequate representation in the state services and to ensure that the benefit of reservation reach the poorer and the weakest section of the backward class, the creamy layer should be excluded in that class, from claiming the benefits. ‘Means test’ signifies imposition of an income limit for the purposes of excluding persons from backward classes and those whose income is above the limit are referred as ‘creamy layer’.
5. Art 16 (4) permits classification of the backward classes into backward and more backward classes.
6. A backward class of citizens can not be identified only and exclusively with reference to economic criteria.
7. Reservation shall not exceed 50 Percent.
8. Reservation can be made by “executive order”.
9. No reservations in Promotions.
10. Permanent Statutory body to examine complaints of over- inclusion/ under inclusion.
11. Mandal commission report – No opinion expressed.
12. Disputes regarding new criteria can be raised only in the Supreme Court.

The majority judgement in the Mandal case was welcomed by all the sections of society as it was able to defuse the crises which the nation was facing since the declaration made by V.P Singh’s government implementing the Mandal commission report reserving 27% government jobs for the socially and educationally backward classes.

 Position After Mandal’s case

 As been discussed above, the Mandal case decision has laid down a workable and reasonable solution to the reservation problem, but the politicians are still trying to dilute the effect of the Mandal Commission in order to make their vote bank intact. As the Court has laid down that there shall be no reservation in promotions in government jobs. But the government has enacted the Constitution 77th amendment Act, 1995 in order to bypass the court ruling over this point. This amendment has added a new clause (4-A) to art 16 of the Constitution which provides that “nothing in this article shall prevent the state from making any provision for reservations in the matters of promotion to any class or classes of the posts in the services of the state in favour of SC’s and ST’s which in the opinion of the State, are not adequately represented in the services under the state”.

 This means that reservation in promotion in government jobs will be continued in favour of SC’s and ST’s even after the Mandal case, if the government wants to do so. This is clearly intended to nullify the effect of the decision of Supreme Court in Mandal case.[10]

81st amendment Act, 2000 [Art 16 (4B)]   

In Indra Sawhney case, majority ruled that operation of carry forward rule should not result in breach of 50% rule. However, the Constitution amendment Act 2000, added the following clause (4B) to Article 16:

Nothing in this article shall prevent the state from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are to be filled up for determining the ceiling of 50% reservation on the total number of the total number of vacancies of that year.

 In short, the new clause (4B) enables the state to carry forward the unfilled reserved vacancies to be filled in any succeeding years so as to remove the backlog, notwithstanding the rule of 50% ceiling. Instead of giving ample educational facilities to SC’s and ST’s to improve their merit.[11]

85th Amendment Act 2001:
This amendment has substituted, in clause 4-A, for the words “in matters of promotion to any class” the words “ in matters of promotion with consequential seniority, to any class”. This amendment aims at extending benefits of reservation in favour of the SC/ST in matters of promotion with consequential seniority i.e., From April 1995 when the constitution 77th amendment was enacted.

These amendments were challenged in a landmark case, M.Nagaraj v. UOI.[12][13]

In this case, a five judge bench unanimously held that the constitutional amendments by which Art 16(4A) and 16(4B) have been inserted flow from Article 16(4)
And do not alter the basic structure of article 16(4). The judges in this judgment said that:
The ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
                                                               However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.[14]

Justice Ram Nandan Committee – ‘creamy layer’
In Indra Sawhney v. UOI, The Supreme Court directed the government of India to specify the basis of exclusion whether on the basis of income, extent of holding or otherwise of “creamy layer”. In accordance with the direction, the Government of India appointed an expert committee known as “justice Ram Nandan Committee”, to identify the creamy layer among the socially and educationally backward classes. The committee submitted its report on March 16, 1993, which was accepted by the government.
 The reason underlying this approach is that an effort be made so that the most deserving section of the backward class is benefited by the reservation under 16(4).
There are also certain positions, the occupants of which can be treated as socially advanced without any further inquiry. The Supreme Court has specifically declared that the children of IAS or IPS, or any other All India Services in the backward classes constitute creamy layer, without any doubt. The social status of such officers rises and he is no longer socially backward. And their children also get full opportunity to rise up to their potential[15].

So in short, now Indian law provides for a quota system whereby a percentage of posts are reserved in employment in Government and in the public sector units, and in all public and private educational institutions, except in the religious/linguistic minority educational institutions, in order to mitigate backwardness of the socially and educationally backward communities and the Scheduled Castes and Tribes who do not have adequate representation in these services and institutions. The reservation policy is also extended to the Scheduled Castes and Scheduled Tribes for representation in the Parliament of India. The central government of India reserves 27% of higher education, and individual states may legislate further reservations. Reservation cannot be exceeded 50%, as per the rulings given by the Supreme Court, but certain Indian states like Rajasthan have proposed a 68 % reservation which includes a 14% reservation for forward castes.

Reservations are intended to increase the social diversity in campuses and workplaces by lowering the entry criteria for certain identifiable groups that are grossly under-represented in proportion to their numbers in the general population. Caste is the most used criteria to identify under-represented groups. However there are other identifiable criteria for under-representation—gender (women are under-represented), state of domicile (North Eastern States, as Bihar and Uttar Pradesh are under-represented), rural people, etc. as revealed by the Government of India sponsored National Family Health and National Sample surveys.
The underlying theory is that the under-representation of the identifiable groups is a legacy of the Indian caste system. After India gained independence, the Constitution of India listed some erstwhile groups as Scheduled Castes (SC) and Scheduled Tribes (ST). The framers of the Constitution believed that, due to the caste system, SCs and the STs were historically oppressed and denied respect and equal opportunity in Indian society and were thus under-represented in nation-building activities. The Constitution laid down 15% and 7.5% of vacancies to government aided educational institutes and for jobs in the government/public sector, as reserved quota for the SC and ST candidates respectively for a period of five years, after which the situation was to be reviewed. This period was routinely extended by the succeeding governments.[16]

Reservation policy in India: An application of social engineering:-

In few ways, Pound’s theory of social engineering has some good application in reservation policy in India and in few ways, not. Before explaining the co-relation between reservation policy and social engineering, I would like to give a brief explanation about the theory of ‘social engineering’ by Roscoe Pound.

According to Roscoe Pound, the main features of the sociological school of jurisprudence are:
1.   It emphasises the functional aspect of law and not its abstract contents.
2.   It treats law as a social institution which is closely related to various other disciplines that have a direct impact on society.
3.   It believes that human experience is the basis of law and that law is designed to meet dynamic social needs. (This is contrary to the emphases placed on ‘command’ by analytical positivism and on the past by the historical school of jurisprudence.)
4.   It either adopts a pragmatic approach by treating law as an applied science which uses functional methods to investigate, analyse and solve social problems or else, it adopts a realistic approach or defines law primarily in terms of judicial precedents.
His, this theory is called the Theory of Social Engineering.

[2] Dr.Paranjape .N.V , “Studies in Jurisprudence & legal theory” , Pg 66-67, 5th edition2008, Central law Agency
[3]Singh Avtar , “Introduction to jurisprudence “,  pg 42-43
[4] Aggarwal  Namita , “Jurisprudence and legal theory “, pg 314-315

[5] Supra note 2 (referred ahead) pg 68-69
[6] Supra note 3 (referred ahead) pg 46
[9] AIR 1993 SC 477
[10] DR.J.N. Pandey , “Constitutional Law of India” , 44th edition 07 , Central Law Agency pg 150-154
[11]  Narendra Kumar , “ Constitutional law of india “  7th edition 08, Allahabad law agency  pg 199
[12] AIR 2007 SC 71
[13]  Supra note 10 (referred ahead )Pg 162
[14] .pdf  and Supra note 24 (referred ahead )Pg 163
[15] Supra note 11 (referred ahead )Pg 196
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1 comment:

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