LAW AND SOCIAL TRANSFORMATION IN INDIA [LLM - Govt Law College of Tamilnadu]

 

LAW AND SOCIAL TRANSFORMATION IN INDIA.

[LLM - Govt Law College in Tamilnadu]

[Exam 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.

 

 4.5 Reservation: Statutory Commissions, Statutory provisions.

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.