LAW AND SOCIAL TRANSFORMATION IN INDIA.
[LLM - Govt Law College in Tamilnadu]
[E xam point of view]
1. Law and social change
1.1 Law
as an instrument of social change.
1.2 Law
as the product of traditions and culture.
Criticism and evaluation in the light of colonization and the introduction of common law system and institutions in India and its impact on further development of law and legal institutions in India.
2. Religion and the law
2.1
Religion as a divisive factor
2.2
Secularism as a solution to the problem.
2.3
Reform of the law on secular lines
2.4
Freedom of religion and non discrimination on the Basis of religion.
2.5
Religious minorities and the law.
3. Language and the law
3.1 Language
as a divisive factor: Formation of linguistic states.
3.2
Constitutional guarantees to linguistic minorities.
3.3
Language policy and the Constitution: Official language; multi-language system.
3.4
Non-discrimination on the ground of language.
4. Community and the law
4.1 Caste
as a divisive factor.
4.2 Non
discrimination on the ground of caste.
4.3
Acceptance of caste as a factor to undo past injustices.
4.4
Protective discrimination: Scheduled castes, tribes and backward classes.
4.5
Reservation: Statutory Commissions, Statutory provisions.
5. Regionalism and the law
5.1 Regionalism
as a divisive factor.
5.2
Concept of India as one unit.
5.3
Right of movement, residence and business; impermissibility of state or
regional barriers.
5.4
Equality in matters of employment: the slogan "Sons of the soil" and
its practice.
5.5
Admission to educational institutions: preference to residents of a state.
6. Women and the law
6.1
Crimes against women.
6.2 Gender
injustice and its various forms.
6.3
Women's Commission.
6.4
Empowerment of women Constitutional and other legal provisions.
7. Children and the law
7.1
Child labour
7.2
Sexual exploitation
7.3
Adoption and related problems.
7.4
Children and education.
8. Modernization and the law
8.1 Modernization
as a value: Constitutional perspectives reflected in the fundamental duties.
8.2
Modernization of social institutions through law.
8.2.1
Reform of family law.
8.2.2
Agrarian reform - Industrialization of agriculture.
8.2.3
Industrial reform - Free enterprise V. State regulation - Industrialization V.
Environmental
Protection.
8.2.4
Reform of court processes.
8.3.1
Criminal law: Plea bargaining; compounding and payment of compensation to
victims.
8.3.2
Civil Law (ADR) Confrontation / Consensus; Mediation and Conciliation; Lok
8.3.3
Prison Reforms Adalats.
8.4
Democratic decentralization and local self - government.
9. Alternative approaches to law
9.1 The
jurisprudence of Sarvodaya Gandhiji, Vinoba Bhave; Jayaprakash Narayan -
Surrender of dacoits; concept of gramanyayalayas.
9.2
Socialist thought on law and justice: An enquiry through constitutional debates
on the right to property.
9.3
Indian Marxist critique of law and justice.
9.4 Naxalite movement; causes and cure.
1. 1. Law and social change
Two fold objectives of law to serve is,
firstly, to keep up stability and afford orderly life in the society. Secondly,
to persuade social change by changing itself according to the needs of the
changing society. Thus, law is an important agency of social control.
1.1 Law as an instrument
of social change.
Law not only lays down the norms which are acceptable to a given
society, it also lays down the norms, which the society should adopt in the
interest of its own welfare. The rules or code of conduct which a society develops
by experience shapes into law for the sake of uniformity, consistency,
performance and sanction.
1.2 Law as the product of
traditions and culture.
The ultimate aim of the law is to change the society peacefully but
traditions and culture create obstacle to it. Tradition and Culture: Tradition
means: a belief, principle or way of acting which people in a particular
society or group have continued to follow for a along time.
Criticism and evaluation in the light of colonization and
the introduction of common law system and institutions in India and its impact
on further development of law and legal institutions in India.
It is found that much of the law compiled in codes that we have today
were primarily derived from the Common Law principles. The basic statutes that
govern Civil and Criminal justice are the Indian Penal Code, 1860, Indian
Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Code of Civil
Procedure, 1908
The common law system – a system of law based on recorded judicial
precedents- came to India with the British East India Company. The company was
granted charter by King George I in 1726 to establish “Mayor's Courts” in
Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively).
Indian Judicial System is largely based on English Common Law system
(where, law is developed by judges through their decisions, orders, and
judgments). It has created a federal system; with a Central government coupled
with State government.
2.
Religion and the law
Religion is a basis
of human life, a way of living and following certain rules the religion enters
the boundary of law whereby a person is compelled to follow or not to break the
rules decided by a State. Hence religion and law are dependent on each other.
Religion plays a vital role in maintaining law and order.
Right to freedom of
religion is well described in the Articles 25, 26, 27 and 28 of Indian
constitution. Before the State and no religion shall be given preference over
the other. Citizens are free to preach, practice and propagate any religion of
their choice.
The religious and
moral codes of a society provided to the State the necessary material for
regulating the actions of the people. The State converted several moral and
religious rules into its laws. Hence Religion and Morality have also been
important sources of Law.
2.1
Religion as a divisive factor
Religion Divide
Mankind: All religious lay emphasis on love and humanity. But in practice
religious make people hate another: those who believe in a particular religion
does not like those who believe in other religion.
The Religious Factor:
A Sociological Study of Religion's Impact on Politics, Economics, and Family
Life.
Article 25 gives
every person the right to freedom of conscience and the right to freely
profess, practice, and propagate religion subject to public order, morality,
and health. Article 26 also gives all denominations the right to manage their
own affairs in matters of religion.
2.2
Secularism as a solution to the problem.
Secularism as a
modern political and constitutional principle involves two basic propositions.
The first is that people belonging to different faiths and sects are equal
before the law, the constitution and the government policy. The second
requirement is that there can be no mixing up of religion and politics.
Secularism is founded
on the separation of religion with state matters. It guarantees the religious
groups' that there will be no interference by the state in the religious matter
and it also requires the state to refrain from adopting any particular
religious views.
However, India's
secularism does not completely separate religion and state. The Indian
Constitution has allowed extensive interference of the state in religious
affairs, such as constitutional abolition of untouchability, opening up of all
Hindu temples to people of 'lower caste' etc.
2.3
Reform of the law on secular lines
The Secular trend in
India is further strengthened by the provision that no taxes may be levied on
any person for the promotion or maintenance of any particular religion. If a
tax is levied for the purpose of meeting the expenses of any particular
religion it is ultra vires of the constitution.
Secularism as a
modern political and constitutional principle involves two basic propositions.
The first is that people belonging to different faiths and sects are equal
before the law, the constitution and the government policy. The second
requirement is that there can be no mixing up of religion and politics.
Secularism in simple
words refers as an ideology which provides people with the right to follow any
religion or not follow any. It permits the state with the responsibility to
maintain neutrality in the matters of religions. In a secular country, no state
can legally favor or hate a particular religion.
2.4
Freedom of religion and non discrimination on the Basis of religion.
Clause (b) of Article
26 says about right to manage 'matters of religion'-a religious denomination or
organization is free to manage its own affairs in matters of religion. The
State cannot interfere in the exercise of this right unless they run counter to
public order, health or morality.
Article 25 gives
every person the right to freedom of conscience and the right to freely
profess, practice, and propagate religion subject to public order, morality,
and health. Article 26 also gives all denominations the right to manage their
own affairs in matters of religion.
The First Amendment
to the U.S. Constitution says that everyone in the United States has the right
to practice his or her own religion, or no religion at all.
2.5
Religious minorities and the law.
Article 29 mandates
that no discrimination would be done on the ground of religion, race, caste,
language or any of them. While Article 30 and Article 29 of the Constitution do
not specify 'minorities' in India, it is classified into religious minorities
and linguistic minorities.
Muslims, Sikhs,
Christians, Buddhists, Jain and Zorastrians (Parsis) have been notified as
minority communities under Section 2 (c) of the National Commission for
Minorities Act, 1992.
Minority rights are
the normal individual rights as applied to members of racial, ethnic, class,
religious, linguistic or gender and sexual minorities, and also the collective
rights accorded to any minority group.
It's true that
India's religious minorities face many problems related to violence and
discrimination, particularly Muslims are targeted, but women of the Muslim
community face even more problems. Christians and Sikhs face lesser degree of
social, economic, cultural and legal discrimination.
3. Language and the law
Language provides
communication within the society. Law settles the conflicting interest in the
society and helps in the existence of the society whereas language also
provides peace and harmony in the society. Law as a social arrangement is an
important tool for social control and its ultimate aim is social welfare.
Law is language. It
is not solely language, since it is a social institution manifested also in
non-linguistic ways, but it is a profoundly linguistic institution. Laws are
coded in language, and the processes of the law are mediated through language.
Vocabulary, syntax
and semantics makes the legal language all the more burdensome to the layman.
The layman finds these legal writings difficult because these vocabulary are
borrowed from the French and the Latin language.
3.1 Language
as a divisive factor: Formation of linguistic states.
The demand for states
to be organized on a linguistic basis was developed even before India achieved
independence from British rule. A first-of-its-kind linguistic movement started
in 1895, in what is now Odisha.
The issues of jobs,
educational opportunities, access to political power and share in the larger
economic cake has fueled rivalries and conflicts based on religion, region,
caste and language.
The Language Division
of the Office of the Registrar General, India was established in August, 1961
to assist the Registrar General, India for the systematic presentation of
Language Tables through the process of rationalisation and classification of
the mother tongue returns derived during Census enumeration.
3.2
Constitutional guarantees to linguistic minorities.
Article 29 Protection
of Interests of minorities: (i) Any Section of the citizens residing in the
territory of India or any part thereof having a distinct language, script or
culture of its own shall have the right to conserve the same.
Article 30 (1) of the
Constitution of India provides a fundamental right to linguistic minorities to
establish and administer educational institutes of their choice
Article 29(1): right
of 'any section of the citizens' to 'conserve' its 'distinct language, script
or culture'. Article 29(2): restriction on denial of admission to any citizen,
to any educational institution maintained or aided by the State, 'on grounds
only of religion, race, caste, language or any of them'.
3.3
Language policy and the Constitution: Official language; multi-language system.
Language of the
Union: Article 343 of the constitution states that official language of the
Union shall be Hindi. Further for International form the English Language shall
continue to be used for all the official purpose of the Union.
There is no national
language in the Republic of India. However, article 343(1) of the Indian
constitution specifically mentions that "The official language of the
Union shall be Hindi in Devanagari script.
The official language
of the Union shall be Hindi in Devnagari script. The form of numerals to be
used for the official purposes of the Union shall be the international form of
Indian numerals.
3.4
Non-discrimination on the ground of language.
Art 14 : of the
constitution prohibits the state from discriminating on the ground of language before
the law.
Art 15: Prohibits the
State from making any laws or discriminating on the groun of language in the
public places.
Art 16:Prohibits
discriminating any opportunity of employment or promotion.
Art:23(2) of the
constitution, State may impose compulsory service for public purpose but can
not discriminate on the ground of language.
Art 29(2) : states
that no citizen shall be denied admission into any educational institution maintained
by the state or receiving aid out of State funds on ground only of religion,race,caste,language
or any of them.
In India language is
not an important divisible factor but plays just a minor role than the religion,
castes or regionalism.
4.Community and the
law
4.1 Caste
as a divisive factor.
Caste acts both as a
divisive and cohesive force in Indian politics. It provides a basis for the
emergence of several interest groups in the Indian system each of which
competes with every other group in the struggle for power. At times it leads to
unhealthy struggle for power and acts as a divisive force.
Casteism is often
used to justify inequality and oppression, as it provides a way to rationalize
why some people are born into poverty or low social status. It also reinforces
the notion that people should stay in their place and not try to move up in the
world. This can lead to stagnation and prevent social mobility.
4.2 Non
discrimination on the ground of caste.
Article 15(1) :
Prohibits the State from discriminating against any citizen on grounds only of
religion,race,caste,sex,place of birth or any of them. 3. Article 15(2):
Prohibits the general public and any citizen from discriminating any citizen on
grounds only of religion, caste, sex, and place of birth or any of them.
Article 14. Equality
before law. -The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India. (1) The State
shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
4.3
Acceptance of caste as a factor to undo past injustices.
Caste acts both as a
divisive and cohesive force in Indian politics. It provides a basis for the
emergence of several interest groups in the Indian system each of which
competes with every other group in the struggle for power. At times it leads to
unhealthy struggle for power and acts as a divisive force.
According to article
14 of the Indian constitution, the state shall not deny equality to any person
before the law or the equal protection of the laws within the territory of
India. Article 15 prohibits the state from discriminating any citizen on ground
of any religion, race, caste, sex, place of birth or any of them.
4.4
Protective discrimination: Scheduled castes, tribes and backward classes.
Protective
discrimination is the policy of granting special privileges to the downtrodden
and the underprivileged sections of society, most commonly women. These are
affirmative action programs, most visible in both the United States and India,
where there has been a history of racial and caste discrimination.
Henceforth,
protective discrimination as a constitutional tenet for protection and
preservation of the rights of scheduled castes, scheduled tribes, and other
backward classes of citizens as well as women is highly recommended in our
society.
Besides, Article 46
provides that the State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in particular,
the Scheduled Castes and Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
16(4) "Nothing
in this Article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in
the services under the State."
5. Regionalism and the law
Regionalism refers to
the excessive attachment of peoples to their region, which cause disharmony
between them and peoples of other regions. Regionalism is largely based on
Cultural, linguistic, political, developmental diversities. As India is rich in
diversity, we have plenty of versions of regionalism.
5.1 Regionalism
as a divisive factor.
The communication is
essential for human beings. Interactions among people are possible because of
communication. Language facilitates to communicate. Thus language forms a very
important part in human life. Every human society has its, own language. Indian
society is a unique society. India is a land of linguistic diversities. There
are many languages in India. It is considered that Sanskrit is the mother of
all Indian languages. After independence the government felt that the best way
of reorganizing states was on the basis of language.
5.2
Concept of India as one unit.
The Constitution of
India holds a unique place in the country's history. This is because it created
a sovereign republic that is the modern state of India. The supreme law of the
land, rightly described India as a secular country in which the State has no
religion
5.3
Right of movement, residence and business; impermissibility of state or
regional barriers.
Article 19(1)(d)
under Part III of the Indian Constitution deals with the fundamental right to
freedom of movement. It guarantees the citizens of India the right to move
freely throughout the territory of India. This right overlaps with Article
19(1)(e) which talks about the right to freely reside in any part of the
country. The word “freely” connotes “without any absolute restriction”.
Wherever and however one likes, he can move without any restriction. However,
this right is subject to reasonable restrictions given by law which is
mentioned under Article 19(5). Article 19(5) states that states can impose restrictions
on the freedom of movement of people either in the interest of the general
public or for the protection of rights of the scheduled tribes.
5.4
Equality in matters of employment: the slogan "Sons of the soil" and
its practice.
At the time of
independence, only a few enclaves or areas around Calcutta. Bombay and Madras
had undergone modern industrial development, rest were backward. The central government adopted a whole range
of policies to influence the rates of growth in poorer states and regions so as
to reduce their economic distance from the richer states and regions. The government
adopted the trickle-down effect but it failed to bring result.
Due to low rate of
economic growth regional inequality did not dissipiated even after steps taken
by the government.
This unequal access
to resources and competition for that raises the concept of the sons of the
soil' movements.
5.5
Admission to educational institutions: preference to residents of a state.
Is Article 29(2) an
Exception to Article 15(1)?
The position of same
sex education is further complicated in cases where the educational institution
in question is a minority institution. The minority institution’s rights to
control admission under Article 30 of the Constitution and the permissibility
of restricting admission on the ground of sex under Article 29 of the
Constitution are then brought into question. Article 29 of the Constitution is
titled “Protection of the Interests of Minorities”, and Article 29(1)
guarantees to minorities the right to conserve their language, script or
culture. Article 29(2) states:
6. Women and the law
Rightly did Swami
Vivekanand say, 'Just as a bird can not fly with one wing only, a Nation can
not march forward if the women are left behind'.
India is known for
its Culture, Sacraments, Secularism and uncountable qualities. And taking all
these features forward a woman not only serves her family but the whole
country. This is not the time when a girl gets married at the age of 14 or is
ordered to work at home only but we belong to the era of Women like Kalpana
Chawla, Kiran Bedi, Bachendri Pal who made histories.
6.1
Crimes against women.
Laws to protect women
against crimes
The Indian Penal
Code, 1860
The Sexual Harassment
Of Women At Work Place (Prohibition, Prevention, and Redressal) Act 2013
Protection Of Women
From Domestic Violence Act, 2005
The Dowry Prohibition
Act, 1961
The Indecent
Representation Of Women (Prohibition) Act, 1986
The Immoral Traffic
Prevention Act, 1956
The Commission Of
Sati Prevention Act, 1961
The Constitution of
India also ensures gender equality under article 14. Even after introducing
such a big amount of laws, crime rate against women continues to be increasing.
6.2 Gender
injustice and its various forms.
Gender injustice
means injustice on the basis of sex. But in practice the story is different in
the case of injustice to women; it is women only except the rape cases. In
kinds of injustice as domestic violence, forced abortion, sex detection and
dowry death.
With the prevalence
of gender discrimination, and social norms and practices, girls become exposed
to the possibility of child marriage, teenage pregnancy, child domestic work,
poor education and health, sexual abuse, exploitation and violence. Many of
these manifestations will not change unless girls are valued more.
6.3
Women's Commission.
The Commission is
equipped with powers to safeguard rights of women and ensure their protection
and equality against any form of harassment and issues faced in the family and
community. The commission was created with the following objectives: Ensuring
protection and welfare of women.
The Commission on the
Status of Women (CSW) is the principal global intergovernmental body
exclusively dedicated to the promotion of gender equality and the empowerment
of women. A functional commission of the Economic and Social Council (ECOSOC),
it was established by ECOSOC resolution 11(II) of 21 June 1946.
6.4
Empowerment of women Constitutional and other legal provisions.
Article 39(a)- The
State shall direct its policy towards securing all citizens men and women,
equally, the right to means of livelihood. Article 39(d)- Equal pay for equal
work for both men and women. Article 42– The State to make provision for
ensuring just and humane conditions of work and maternity relief.
Dowry Prohibition
Act, 1961. The Medical Termination of Pregnancy Act, 1971. The Contract Labour
(Regulation and Abolition) Act, 1976. The Equal Remuneration Act, 1976.
7. Children and the law
Reformatory schools
Act was introduced in India in 1897.
The Juvenile court
was first introduced in the Madras Children Act 1920, followed by the Bengal
Children Act 1922, and the Bombay Children Act 1924, thereafter many Children
Acts.
In 1923 the Code of
Criminal Procedure was amended to provide special procedure for adjudicating
criminal cases concerning child offenders.
In the year 1960, The
Children Act was passed by the Government of India to function as Model
legislation and for use in Union Territories.
In 1986 the Juvenile
Justice Act was enacted to provide protection, care, treatment, development and
rehabilitation of neglected and delinquent juveniles and for the adjudication
of certain matters related to the disposition of delinquent juveniles. It
repealed all other Children Act and provided for a Uniform legal framework for
the Juveniles Justice System throughout the country.
The Juvenile Justice
Act was re-enacted with some modifications in the year 2000.
The Juvenile Justice
Act was again enacted in the year 2015 with new modifications.
The Protection of
Children from Sexual Offences Act 2012 which was also amended in the recent
bill of 2018.
The right of Children
to free and compulsory education Act 2009.
Child Labour
(prohibition and regulation) Act, 1986 which got amended in 2016.
Prohibition of child
marriage act 2006.
Guardians and Wards
Act 1890.
Hindu Adoption and
Maintenance Act 1956.
Protection of
Children from Sexual Offences Act, 2012.
7.1
Child labour
The Child Labour
(Prohibition and Regulation) Act of 1986 designates a child as a person who has
not completed their 14th year of age. It aims to regulate the hours and the
working conditions of child workers and to prohibit child workers from being
employed in hazardous industries.
7.2
Sexual exploitation
Sexual exploitation
involves a person profiting from the use of another person's body in a sexual
manner in order to benefit (financially or otherwise). In general, the
perpetrator of sexual exploitation takes advantage of their victim's vulnerable
or dependent state, including addictions to drugs or alcohol.
7.3
Adoption and related problems.
After you've decided
to adopt a child, you may face many adoption problems at practically every
turn. These hurdles can be financial, legal, intercountry adoption, health-related,
or emotional challenges from friends and family, as well as societal and
cultural challenges.
As of September 2022,
1,800 children are up for adoption. However, legal procedures and its numerous
technicalities can prove tedious and emotionally taxing. Some estimates show
that it can take almost three years to adopt a legally available child.
7.4
Children and education.
The government of
India introduced the right to free and compulsory education act, RTE and making
education as a fundamental right for the children’s age group of 6-14.
The Right to
education act is an act of parliament proposed on 4 august 2009 which shows and
highlights the model of the importance of free and compulsory education to
children age group 6-14 in India. India has become one of the 135th countries
to implement the right to education as a fundamental right guaranteed in our
constitution under Article 21A to every child. This act came into force on 1st
April, 2010.
8. Modernization and the law
In a nutshell, modern
law refers to the idea of taking a business centered approach to legal practice
by embracing emerging technologies and new partnerships to increase efficiency
and make smarter operational decisions.
8.1 Modernization
as a value: Constitutional perspectives reflected in the fundamental duties.
Fundamental Duties
are the modernization of the Constitution. Fundamental Duties have been
incorporated in the Indian Constitution ' to remind every citizen that they
should not only be conscious of their rights, but also of their duties. Rights
and duties go hand-in-hand as they are correlative.
8.2
Modernization of social institutions through law.
A social institution
is an interrelated system of social norms and social roles that are organized
and provide patterns of behaviors that contribute to meeting the basic social
needs of society. For example, societies need laws, education, and an economic
The five major social
institutions in sociology are family, education, religion, government
(political), and the economy.
8.2.1
Reform of family law.
Parsi Marriage and
Divorce (Amendment) Act, Indian Divorce (Amendment) Act, Special Marriage Act
1954,The Hindu Minority and Guardianship Act 1956; Hindu Marriage Act 1955,
Hindu Succession Act 1956 were some of the legislations which were enacted
after Independence.
There are four main
methods of reforming the law: (a) repeal (removal or reversal of a law), (b)
creation of new law, (c) consolidation (combination of a number of laws into
one) and (d) codification (collection and systematic arrangement, usually by
subject, of the laws of a state or country).
8.2.2
Agrarian reform - Industrialization of agriculture.
Agrarian reform can
refer either, narrowly, to government-initiated or government-backed
redistribution of agricultural land (see land reform) or, broadly, to an
overall redirection of the agrarian system of the country, which often includes
land reform measures.
There can be
different types of agrarian reform measures like credit measures, integration
of land and training of the farmers.
8.2.3 Industrial reform - Free enterprise V. State regulation - Industrialization V. Environmental Protection.
8.2.4
Reform of court processes.
Everything done by
judge in the process of delivery of justice is. called Judicial Process .It
basically confines itself to the study of ―is‖ to ―ought‖ of the law. Or,
Judicial process is basically ―whole complex phenomenon of court.
Judicial reform is
the complete or partial political reform of a country's judiciary. Judicial
reform is often done as a part of wider reform of the country's political
system or a legal reform.
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