Law and public opinion

Judicial and Legislative Process · Unit IV · Topic 14 of 20 · 5 min read

Dicey's account of how opinion shapes legislation, Savigny and the social-change school, Indian examples of law leading and following opinion, and how courts treat popular morality.

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On this page

1. Dicey: law follows opinion
2. Other theories
3. Law leading opinion: Indian examples
4. Opinion driving law: Indian examples
5. Courts and public opinion
6. Is public opinion a legitimate source of law?
7. Channels through which opinion reaches law
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The relation runs both ways. Public opinion shapes law (Dicey), and law shapes public opinion (social reform legislation). The legislature is the main channel for the first; courts are often asked to resist it in the name of constitutional morality. A good answer shows all three movements with Indian examples.

1. Dicey: law follows opinion

A.V. Dicey’s Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (1905) is the classic study. His central claims:

In a country like nineteenth-century England, legislation reflects the dominant current of opinion among those who influence Parliament, not of the whole population.
Opinion changes slowly, and law lags behind it; an idea may take a generation to pass from thinkers to legislators.
Laws in turn create opinion: once enacted, a law fosters the beliefs that sustain it.
There are cross-currents: an older opinion survives alongside the new.

He divided the century into three periods:

Old Toryism or legislative quiescence (roughly 1800 to 1830): little reform legislation.
Benthamism or individualism (roughly 1825 to 1870): law reform to free the individual — reform of Parliament, of criminal law, of contract and property.
Collectivism (from about 1865): state intervention in factories, public health, education and labour.

The book has been criticised for treating opinion as the cause and law as the effect, for underrating interest groups and administrative pressure, and for Dicey’s own hostility to collectivism. Its method — tracing legislation to the ideas behind it — remains useful.

2. Other theories

Savigny and the historical school: law is found in the Volksgeist, the spirit of the people, and grows like language; legislation should wait on popular consciousness. On this view law that runs ahead of opinion will fail.
Bentham: law should be made by the legislator on the principle of utility, and can and should reform opinion.
Ehrlich: the “living law” of society matters more than the statute book.
W. Friedmann (Law in a Changing Society, 1959): law sometimes follows social change and sometimes leads it; in developing countries law is often used deliberately to change attitudes.
Pound: law as social engineering, balancing interests that opinion expresses.

3. Law leading opinion: Indian examples

In India the Constitution itself was ahead of opinion on caste, gender and religion, and much early legislation was meant to change attitudes, not to reflect them.

The Hindu Code legislation of 1955–56 (Marriage, Succession, Minority and Guardianship, Adoptions and Maintenance), passed against strong opposition after the original Hindu Code Bill was dropped in 1951.
The Untouchability (Offences) Act, 1955, later the Protection of Civil Rights Act, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The Dowry Prohibition Act, 1961 and the Prohibition of Child Marriage Act, 2006 — laws whose limited enforcement shows the cost of running too far ahead of practice.

Savigny would predict their partial failure; Friedmann would point to the slow change in attitudes they helped produce. Both are partly right.

4. Opinion driving law: Indian examples

The Criminal Law (Amendment) Act, 2013, enacted after public protest over the Delhi gang rape of December 2012, on the basis of the Justice J.S. Verma Committee report.
The Lokpal and Lokayuktas Act, 2013, after a sustained public campaign against corruption.
The Farm Laws Repeal Act, 2021, which repealed three agricultural laws of 2020 after a year of farmers’ protest — opinion reversing legislation.
The Muslim Women (Protection of Rights on Divorce) Act, 1986, passed in response to the reaction against Shah Bano (see the note on interpretation).

5. Courts and public opinion

Courts are designed to be insulated from opinion, yet they cannot ignore it entirely, because their authority depends on public acceptance.

Constitutional morality over popular morality. In Navtej Singh Johar v. Union of India, 2018 INSC 790, the Court held that section 377 of the IPC, so far as it criminalised consensual adult relations, could not be saved by appeal to social or public morality; the test is constitutional morality. The phrase is Ambedkar’s, taken from Grote.
Religion and practice. In Indian Young Lawyers Association v. State of Kerala, 2018 INSC 908 (Sabarimala), the majority held the exclusion of women of menstruating age unconstitutional despite strong local opinion; review petitions led to a reference to a larger bench on wider questions.
Public opinion as a reason for intervention. PIL often begins with newspaper reports, and courts sometimes cite public concern as a ground for issuing directions.
The risk. Trial by media and the pressure of opinion on criminal courts; the contempt power and restraints on pre-trial publicity are the response.

Bickel’s point in reverse. The counter-majoritarian difficulty says courts should hesitate to override opinion expressed through the legislature. Navtej and Sabarimala show the opposite claim: rights exist precisely to protect minorities against the majority. An LL.M. answer should state both and say when each should prevail.

6. Is public opinion a legitimate source of law?

Two positions should be set against each other. On the democratic view, a law that has lost public support has lost its claim to obedience, and the legislature is right to follow opinion; the repeal of the farm laws is democracy working. On the constitutional view, opinion is a source of law only within limits: a majority cannot vote away the rights of a minority, and a legislature that legislates in response to outrage (as critics said of parts of the 2013 criminal law amendments, such as the expansion of the death penalty) may produce harsh or poorly considered law. Hart’s reply to Lord Devlin in Law, Liberty and Morality (1963) is the classic statement of the second view: the fact that the majority condemns conduct is not by itself a reason to make it criminal.

7. Channels through which opinion reaches law

Elections and party manifestos.
Pre-legislative consultation and committee hearings.
The Law Commission’s consultation papers.
Petitions to Parliament (the Committee on Petitions).
Media, civil society campaigns and protest.
Litigation, including PIL.

How this is examined

“Discuss the interaction between law and public opinion” was Q.6 in August 2024. Start with Dicey’s three periods and his propositions, set Savigny against Bentham and Friedmann, and then give Indian examples in three groups: law leading opinion, opinion driving law, and courts resisting opinion through constitutional morality. Conclude that the relation is reciprocal and that the legislature and courts play different parts in it.

Now try the real questions: Judicial and Legislative Process past question papers.