SOCIOLOGY OF LAW – END SEM NOTES

MODULE 3 – LEGAL PROFESSION AND EDUCATION

EDUCATION
History
There was law before british came. Mostly on dharma. No judges, but kings. Hierarchy existed.
ADR was always there in ancient text.
In 1774 – SC set up in Bengal.
1776 – 3 central universities established in Bombay, Calcutta and madras.
Asiatic society was established by William Bentick to train lawyer cos he needed them.
1987 – 5 years law programme started.
In BCI v. state of UP, Sc mentioned aout the role of BCI for taking care of ethics, admission,
privileges,discipline,etc.
Under section 7(1)(h) of advocates act, BCI is needed to promote legal education.
Transformation of Indian legal education – madhav menon article
Even higher education is growing like other institutinos in india. On basis of a report of expert
committee, parliament took steps to enact indan advocates act in 1961. This brought legal system
of entire Indian under one code. Then first generation reforms in legal education followed with
minor changes until beginning of 1980s. these reforms were:
LLB was a post graduate course (after getting a degree); growth in law schools, mainly
private ones; devp. Of core curriculum; after LLB, one year mandatory apprenticeship with
snr. Advocate was required for eligibility for license to practice.
So legal education grew but diluted. So 2nd generation improvement was needed. Strategy was to
make LLB a five year integrated course. This 5 year course became BCI’s only recognised course
in 1982. Due to resistence, recognised even the 3 years one.
2nd generation reforms led by NLUs
BCI decided to sponsor a model 5 year law school. This had to be pace setter for other universities.
This led to birth of NLSIU or Harvard of the east. This was a huge success.
Three decades after these reforms:
Many lawyers entered market. Not all followed solo practice. Entered partnerships and firms, legal
advisors, etc. too successful. Women also entered this. Has become very lucrative. Variety of
specialization.
But negatively, there is paucity of teachers. Everyone wants lucrative jobs. Many migrate to other
countries. BCI has offered to send snr. Advocates to these law schools for part time. some are
entering MoUs with friegn law schools for exchanges.
So need to ensure there aren’t mediocre law schools. this will lead to the same situation as to what
has happened with other industries like engineering or medicine. The recent decision to stop new
law schools coming up for 3 years is a good decision.
Also, complaints come that NLUs are only corporate oriented. The aim of NLUs was to supply
well trained lawyers to the trial and appellate bar as well as for judicial service. Corporate
opportunities are very lucrative.
Legal education in india – current challenges
The world debates whether we need to use socratic ‘case-dialogue’ method of law teaching, Indian
legal education is busy with its ‘provision-ingredients’ knowledge of law. Teaching involves
reading of statutes and its interpretation by courts. Lecturing, note taking, mugging is the trend.
So when a fresh graduate enters court, he is fucked.
In case of shamnad bashir v. BCI, it was to remove cluthches of legal education from BCI. Still
pending.
Recommendations in the 184th are important. Major recommendations regarding std. of education,
legal skills,etc. was given. Also said implement ADR. Salem advocates bar association v. UOI
asked for ADR. Said practitioners and judges should teach as well.
There are more than 900 legal educational institutions. Many law colleges do not fulfill the
infrastructural requirements as recommended by the BCI, but still they continue to get annual
approval from the BCI. The BCI norms, especially the ones concerning minimum faculty, library
requirements, teaching load are being flagrantly violated by the law colleges and yet their
affiliation with the Council continues.
It is necessary to point out that legal education is professional education and not vocational
training. Despite a mandatory minimum entry-level requirement national eligibility test for law
teachers, many law colleges appoint who do not clear this eligibility test. College management
wants to make profit (surplus). Teachers are available to teach on low payment. In this scenario
the greatest casualty is to the Legal Profession and Quality Legal Education. The situation is not
different in many of the National Law Schools. Lack of qualified and competent teachers is a major
concern in most of the National Law Schools in India. Many National Law Schools are student
driven. They make success on the national scenario because the intake of students is excellent.
Law commission of India Report(266th report in 2017)
Chapter 7 – days on strike
• Different states use too much time striking. ( in rajasthan – 142 days wasted on strike in 4
years; UP is worst – 265 days wasted in 4 years on strike).
• Commission noted that there were no good reason for all this. The reasons had no relevance
to the working of courts. Dumb reasons like bomb blast in Pakistan, amendments to sri
lanka’s constitution were given.
Chapter 8 – other reasons
• The above chapter gives one big reason as to pendency of cases. SC has said advocates do
not have right to call for strike. Held in Pandurang dattatreya v. bar council M.H. on
the contrary, courts can go along with case even if lawyers are not there.
• Inspite of such judgements still strikes happen. right to speedy justice is in art. 21. In
Ramon Services Pvt. Ltd. v. Subhash Kapoor, the apex Court observed that if any
advocate claims that his right to strike must be without any loss to him, but the loss must
only be borne by his innocent client, such a claim is repugnant to any principle of fair play
and canons of ethics.
• In addition to strikes, SC has noticed browbeating (threatening law officers and all) by
advocates for getting favourable order. As a rule an advocate cannot be adamant for an
order. In many cases court has held that all cases will be heard and no ducks to be given
for pressure tactics, strikes, boycotts, browbeating, etc.
• So when there is no lawyer, court can proceed ex parte.
• False allegation against members of judidicary should be curbed. Libert of free speech
should not be confused with making false allegations and all. In Bar Council of India v.
High Court of Kerala27, the Supreme Court observed, “An advocate in no circumstances
is expected to descend to the level of appearing to support his view in a vulgar brawl.”
Chapter 11 – fake lawyers
• It was found very high percentage of lawyers were fake (33 to 45%). They were practicing
without any degree or fake degree (e.g. of NLIU giving fake degrees). They could have
entered judiciary also. Legal advice by such people could affect deliverance and quality
of justice and their mere existence in legal system would definitely erode public trust.
• Thorough scrutiny is needed.
Chapter 12 – legal education
• Legal education should prepare professionals equipped to meet the new challenges and
dimensions of internationalization where nature and organisation of law practice are
undergoing big shift.
a. History:
o First introduced in 1855 in Calcutta, madras and Bombay.
o The University Education Commission was appointed by Government of India
under the chairmanship of Dr. S Radhakrishnan, “to report on Indian University
Education and suggest improvements and extensions that might be desirable to suit
the present and future requirements of the country.” The Commission in its report
submitted in August 1949 inter alia recommended substantial improvement in legal
education.
 b. Constitutional framework
o Duty of states to impart education initially. Now it is in concurrent list. SC, taking
into consideration art. 21 and 39A said, state govt. to give grant in aid to legal
institutes.
c. Reports of previous law commissions
o In 14th law commisiion, there was a sad picture of law schools shown. Bad
teachers, mushroom growth of law schools, bad infrastructure,etc. which led to
half baked lawyers.
o Need to bring in ADR training, give more important to skills and values,
internships, etc.
d. Legal position
o SC has held that BCI is responsible for legal profession and education. BCI needs
to give min. std. needed to maintain a law school. However, need for improvement
in bar is also seen. 2 measures are very important: introduction of bar exam and
ompulsory apprenticeship.
e. Conclusion
o Need to transform legal education. Should be structured.
Chapter 13 – going to high courts without going to low courts
• Another imp. Thing is new advocates want to work in higher courts without knowing
what happens in the lower courts. So under sec. 7(1) of advocates act, apprenticeship
necessary.
Chapter 14 – foreign law firms
• with fast transformation, world is shrinking. Opening of economy led to influx of
foreign law firms. Incr. in import, export and all led to this. HSF, Linklaters, etc. are
some which have functioning in india.
• Sec. 17 of advocates act – person needs to be in bar list to practice.
Sec. 29 - only listed people are members of bar and are entitled to practice.
For foreign advocates wanting to practice in india, they need to be rolled as per sec.
47 of advocates act and only if Indian lawyers can practice there, they will be allowed.
• Wrt to entry of foreign law firms, complainsts are that for Indians to practice there,
there are a lot of rules to be followed. They can be allowed only if there is a reciprocity.
• From the past practices, it can be seen that the foreign law firms are carrying on
consultancy/support services in the field of protection and management of business
and industrial proprietary rights, and carrying out market survey and market research.
They also protect their intellectual property rights. The foreign lawyers usually visit
India for giving advices on their own system of law. The foreign law firms do also
come with the objective of taking part in negotiations, for settling documents and
conducting arbitrations in India.
• Cos of signing GATS, many foreign arbitrations taking place in india. In PrIL, due to
choice of law, Indian law might have been decided, and here, foreign practitioners are
allowed.
 • Besides this, foreign law firms establishing their business in india has been disussed.
In many cases, different H.C has not allowed foreign law firms to practice and set up
firms in india. But they are allowed for arbitration and other ADR related matters. This
is because, Indian lawyer go to other countries to do the same. And if not allowed, not
cool.

LEGAL PROFESSION
Law firm article
Historical devp. And current characteristics of law firms
Emergence of modern law firm is attributed to Paul cravat and is called ‘cravath system’. Ivolves
hiring of outstanding graduates with an understanding that they might progress to partnership after
some period. Inexperienced lawyers are hired and trained in a quasi apprenticeship. Usually after
some 8 years they get to be partners.
It is a system where seniority doesn’t matter. Juniors can cut the line and can become partners. It
ensures work effort and commitment pays off. It takes their hard work and incentives them with
good paychecks. Firms tend to grow exponentially if promotion percentage is constant and their
associate and partner ratio is constant or increases. So the promotion game is important for the
firms growth leading to demand and mergers between firms.
The increased size changes the dynamics of firms and leads it to become corporations. In addition
to being partners, big firms also add another role of equity partners.
Outsourced attorneys is also a common thing. Work is delegated which was earlier done by
attorneys. Also, lawrge firms means, more profit passes on to equity partners.
Firms are concentrated in big cities. They work in different categories like commercial litigation,
product liability litigation, patent litigation, IPR law, securities law, general corporate law,
competition law, environment litigation,and other litigations. And one big category is mergers and
acqusitions. These are of high value. Since these are transactions in billions, firms get paid a lot.
In firms, producing and reviewing documents is most central practice. This is either done inhouse
or given out on contract. This is very labourous and contract attorneys play a key role. Non attorney
staff like paralegals,play important role here. But this is not how firms earn their money. Rather,
firms generate the vast bulk of their income from hourly billing. Alternative billing arrangements
are occasionally utilized, but the billable hour remains the core product for which firms are paid.
CHANGES IN LEGAL INDUSTRY
Usually firms have good financial performance. But they face certain challenges. One was how
usually only partners get profits and the ratio of partner associate when varies too much, might be
difficult to manage. Law firms compete in an increasing business environment.
In this context offshore legal service is an escape route. But due to ethical billing and composition
of firm, this is limited.
Globalisation and offshoring
Firms have responded to globalization by globalizing their practice. There have been number of
cross border firm mergers and opening of offices in different countries. Singapore, Newyork, UK,
Hong kong are some important places. The costs reduce when this is done.
Contract attorneys has increased, for example, the temporary employment firm Special Counsel
(2009) was hired to assist in the “merger of two international oil companies”. Firms also look at
overseas labour to reduce costs. Cos. Of good English skills in india, many have come to india too
and this has increased the Indian FDI.
Several outsourcing firms provide support to law firms, as well as corporate legal departments.
One notable one is officetiger. It has 2000 employees. They do document review, bibliographic
coding and stuff for giant law firms.
Somefirms provide specific functions. such as Pangea3 and Quislex can provide services that are
relatively sophisticated. These firms employ specialists, attorneys and engineers, who perform
work such as patent drafting, contract drafting, and legal research.
But there are limitations. As seen in Indian law commission report, forgien lawyers aren’t allowed
to practice in india and all. But this can be circumvented as long as offshore work is used to
supplement the work of licensed attorneys and is not represented as ‘legal service’.
Some firms also are opening ‘captive’ offshoring centres. US firm Howrey did this in india. The
driving orce behinf this is reduced labour costs.
Pressure on firms
law firm’s profitability is determined by six essential factors – productivity, leverage, rates
realization, lawyer growth, and margin (expenses).
there are already signs that clients are pushing back on the regular fee increases that firms had
routinely imposed in the past”. Declining realization rates, for instance, indicate the pressure being
put on even leading firms for discounted services.
So firms are reducing outside firms usage.
Also, globalization is a challenge. Because there are laws which function and regulate cross
boundary workings. There are limits to how much they can internalize savings from offshoring
legal work. Firms that are willing and able to offshore legal work may be able to secure a
competitive advantage over firms that are unwilling or unable.
End of cravat system?
Changes in firm dynamics. So partnership is turning into corporates. So firms are using contract
and outsourcing. This means profit goes only to some. This concentration means firms turn into
capitalists, like closely held corporations.
the GATS’s mandate of “progressive liberalization”, along with the fact that only a handful of
countries had excluded legal services from the most-favored nation (MFN) provision of the GATS,
seems to indicate that the GATS may, in time, significantly affect the legal industry.
Legal profession in india – hindu newspaper article of Madhava menon
Only top 20% of lawyers are growing. Remaining 30% cater to middle class and govt. and the rest
50% barely survive. This is mostly due to poor quality of legal education. In this process, the
middle and bottom class, being too many got into professional bodies which manage this
profession. The top class did not give shit. This is tragedy of Indian Bar today.
To get rid of this 5 year course and NLUs came. Even bottom class could be good now. continuing
legal education (CLE) is to be appreciated for professional development and better delivery of
legal services. CLEs are programmes done to enhance skills of lawyers. There is no proper CLE
till date. NLS has a CLE.
Professionals need to have due diligence towards clients, respect to rule of law, professional
responsibility, etc. CLE can make value education a central focus of its programmes and help new
entrants to the profession be aware of the role of values for professional competence. It is in the
sphere of upgradation of knowledge particularly in emerging areas of legal practice where CLE
can help the most. Knowledge is not just an awareness of rules; it includes comprehension,
application, analysis, synthesis and evaluation. Good law colleges attempt to teach through clinical
methods, application of knowledge to solve problems through analysis, synthesis and evaluation.
In India such colleges are few.

Jurisprudential notion of legal profession

1. Natural school of law: plato and aristotle.
Legal profession is based on reason and professional service is based on morality and human
values. As per Aristotle, professionals should focus of ethos and values.
Students don’t want to learn new things. Just copy stuff from board, suck up to teachers who
give good marks, no fucks anout researching and all.
2. positive school of law
legal professionals are bound by law of sovereign. They should act as deputed authorities of
sovieriegn. Here there is no scope for interpretation. This was said by Dwarkin
e.g. Narasimha rao govt.
here, there is suppression of voices.
3. Historical school of law
Legal profession is part of tradition that articulates voice of people (volkgiest). So lawyers and
judges need to understand peoples culture, practices, etc.
 4. Sociologist school of law
Law is instrument of bourgeouis to suppress the portelariat. Law works for their enefit.
5. Realist school of law
Only juges who are legal professionals should be lawmakers.

Article – concept of legal profession

Herbert M. Kritzer:
He listed features that define a professional. They are:
1. Useful knowledge and skill based on specified training or education.
2. Service in interest of poepl.
3. Autonomy of action with respect to actions.
Why law should be a profession? Legal profession is a normative concept where lawyers
should strive to meet the sprit of public service.
As per kritzer, legal profession is oriented towards public service on basis of the knowledge.
Kritzer wrote a book called ‘ justice broker – lawyer and ordinary litigation’ where he
discussed the difference between lawyer and a broker.
Lawyer – goes with interest of public and client. Motivated for clients benefit.
Broker – his own interest. Motivation to help yourself
Functions of sociology of law by podgerecki
1. Sociology of law aims at grasping law in its working – law in books and law in action
2. To give expert advice for social engineering. – e.g. MV act will make people wear helmet
3. This treies to shape the studies so as to make them useful for practical applications.
3 stages of devp. Of sociology of law
a. Primitive stage – Hammurabi code, draconians law, etc.
b. Sociological stage – religion used to punish earlier.
c. Social engineering stage. – MV act, affirmative actions like reservation, etc.

SOCIOLOGY OF LAW AND PROFESSION: CROSS CULTURE PERSPECTIVE

Nature of law
Marc Galanter says – law as a cultural phenomenon and process of change.
John Austin – law is an order and its violation is met by threat of physical coercion.
There are a number of scholars who have considered law as a means to define an end rather than
an order in itself.
THEORIES OF PROFESSION
Difference b/w occupation and profession
Occupation - Occupation is an activity undertaken by the person to earn his livelihood. It can be
business, profession or employment that a person undertakes to make money. Many think that
occupation and profession are synonyms, but the fact is they are different.
Profession - Profession is an activity that requires specialised training, knowledge, qualification
and skills. It implies membership of a professional body, and certificate of practice. The
individuals who undertake a profession of rendering personalised services are called professionals,
who are guided by a certain code of conduct, set up by the respective body.
- According to Gorman & Sandefus, Sociological focus on profession is increasingly obsolete
from a conceptual and theoretical perception because of corporatization of profession.
- Profession becomes means of profit making. Factors determining to choose a profession
downgraded to only profit or money making ( for example, earlier gurukul system, now no
relationship btw teacher and student and same with doctors)
Theories
1. Trait approach
This theory mentions the distinguishing features of the particular profession than other professions
based on the traits.
It strip out the helpful defining features distinguishing professions from other groups. List includes
systematic knowledge base, formal training, and an altruistic orientation to their work. Weakness
of this approach- lack of consensus among trait contributors over what were the core characteristics
of professional groups. Also, the creation of profession depends on state sanction. This
classificatory approach opened the way for special pleading by elite professions in ranking
themselves. the creation of professions actually depends very much on state sanction and cannot
simply be seen as an artefact of the traits themselves (eg: no one wants to be a primary class teacher
as people might perceive it to be demeaning).
Different professionals are determined on the basis of some traits of their features
2. Functionalist approach
As per Talcott, there is a concept of ideal type, which represent how the profession should be. But
it is based on normative approach and does not take empirical approach.
Acc. To Talcott Parsons, this approach less narrowly conceived than the trait approach as it focused
on how the much wanted professions met the needs of the social system. The exalted position of
professional groups was explained by a hypothetical trade-off. ( primary school teacher with a
secondary school teacher; normal lawyer and a senior advocate; hawaldar and an IPS officer ).
Problem before this approach- the centrally defined positive features of professions were normally
assumed, as opposed to being empirically demonstrated. This problem sidestepped by parsons, his
analysis on the ideal types’ which did not necessarily represent how professions actually operated,
but rather were based on normative behaviour related to professional role expectations. Acc to him
it was possible it is possible to classify professions in the mainstream manner based on their
functional prerequisites for action systems—the so- called ‘AGIL’ scheme based on the functions
of adaptation, goal attainment, integration, and latency—which could be applied at all levels.
Criticism of these two approaches- professions at the macro level for acting politically to form
monopolies impeding the free play of the market, thereby serving the interests of professional
groups rather more than the wider society.
3. Interactionism
the micro focus of the interactionists on subjective client–professional interactions in work
contexts meant that interest was diverted from the relationship of professions and organizations at
the meso level and the link between professions and society at a macro level. It is not based on
skills, etc., but the way the society perceives. E.g. prostitutes and lawyers.
4. Marxism
The Marxist perspective was based on situating professions in a capitalist frame of reference rather
than that of a more amorphous industrial society. Some Marxist theorists see the ‘professional-
managerial class’ as agents of surveillance and control for capital, whereas others see professions
like medicine as part of the capitalist class itself.
5. Neo Weberian perspective
Neo-Weberian work variously includes analyses of collective social mobility through
professionalization, the interplay between different occupational jurisdictions in the system of
professions and inter-professional working. This process is considered to be politically competitive
and not shaped by the depth of knowledge possessed by particular groups per se. The basic
touchstone of occupational success in a competitive marketplace for neo-Weberians, though, lies
in persuading the state that the professionalization of specific fields is desirable. Neo-Weberians
like many other macro theorists of the professions acknowledge that there can be tensions between
professionals working in organizations and the managers in these organizations
Criticisms-
1) frequent absence of empirical aspects when this theoretical framework has been implemented
2) any of the unsupported claims of its proponents about professions had actually been criticised
3) its proponents insufficiently tie their studies of professions to the broader occupational division
of labour
 MODULE 4 – LAW AND ADR
INTRO
Gandhi said – true nature of lawyer is to unite parties. Alternative Dispute Resolution (ADR) refers
to a variety of streamlined resolution techniques designed to resolve issues in controversy more
efficiently when the normal negotiation process fails. ADR is growing cos people are dissatisfied
with courts.
OVERVIEW
The modern ADR movement originated in the United States in the 1970s, spurred by a desire to
avoid the cost, delay, and adversarial nature of litigation. The interest in ADR in some countries
also stems from a desire to revive and reform traditional mediation mechanisms.
ADR today falls into two broad categories: court-annexed options and community-based dispute
resolution mechanisms. Court-annexed ADR includes mediation/conciliation.
Community based ADR are New initiatives sometimes build on traditional models of popular
justice that relied on elders, religious leaders, or other community figures to help resolve
conflict. India embraced lok adalat village-level people’s courts in the 1980s, where trained
mediators sought to resolve common problems that in an earlier period may have gone to the
panchayat, a council of village or caste elders.
SPECIES OF ARBITRATION
1. commercial arbitration: for business so as to save time and money. Too much money
spent and business want to hold good relations. This is usally based on contract law or
law of treaties.
2. Investment arbitration: before ICSID and all.
3. Labour arbitration: between employees and all. A growing trend among employers whose
employees are not represented by a labor union is to establish an organizational problem-
solving process, the final step of which consists of arbitration of the issue at point by an
independent arbitrator, to resolve employee complaints concerning application of
employer policies or claims of employee misconduct.
4. Judicial arbitration: court ordered arbitration in family matters, child related matters, etc.
5. Proceedings: various bodies have been formed. 2 main are UNCITRAL and ICSID.
6. Arbitratiors: Arbitrators are not bound by precedent and have great leeway in such
matters as active participation in the proceedings, accepting evidence, questioning
witnesses, and deciding appropriate remedies. Arbitrators may visit sites outside the
hearing room, call expert witnesses, seek out additional evidence, decide whether or not
the parties may be represented by legal counsel, and perform many other actions not
normally within the purview of a court.
MEDIATION: Mediation is a process of alternative dispute resolution in which a neutral third
party, the mediator, assists two or more parties in order to help them negotiate an agreement,
with concrete effects, on a matter of common interest.
Some elements are:
• Each party having a chance to tell his or her story;
• Identification of issues, usually by the mediator;
• The clarification and detailed specification of the respective interests and objectives,
• the conversion of respective subjective evaluations into more objective values,
• Identification of options;
• Discussion and analysis of the possible effects of various solutions;
• the adjustment and the refining of the accessory aspects,
• memorializing the agreements into a written draft
every mediator has his or her own method.
1. Mediation to business and commerce: The mediator in business or in commerce helps the
parties to achieve the final goal of respectively buying/selling (a generical contreposition
that includes all the possible varieties of the exchange of goods or rights) something at
satisfactory conditions (typically in the aim of producing a synallagmatic contract),
harmonically bringing the separate elements of the treaty to a respectively balanced
equilibrium.
CONCILIATION
Conciliation: Conciliation is an alternative dispute resolution process whereby the parties to a
dispute (including future interest disputes) agree to utilize the services of a conciliator, who then
meets with the parties separately in an attempt to resolve their differences. Conciliation differs
from arbitration in that the conciliation process, in and of itself, has no legal standing, and the
conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision,
and makes no award. Conciliation differs from mediation in that the main goal is to conciliate,
most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion
in a way that optimizes parties needs, takes feelings into account and reframes representations. In
conciliation the parties seldom, if ever, actually face each other across the table in the presence
of the conciliator.
NEGOTIATION
a skilled negotiator usually serves as advocate for one party to the negotiation and attempts to
obtain the most favorable outcomes possible for that party. the negotiator attempts to determine
the minimum outcome(s) the other party is (or parties are) willing to accept, then adjusts her
demands accordingly. A "successful" negotiation in the advocacy approach is when the
negotiator is able to obtain all or most of the outcomes his party desires, but without driving the
other party to permanently break off negotiations.
REASONS BEHIND ARBITRATION IN INDIA

people want quick solutions. So ADR. In a country, which aims to protect the socio-economic
and cultural rights of citizens, it is extremely important to quickly dispose the cases in India, as
the Courts alone cannot handle the huge backlog of cases.
Arbitration and conciliation act, 1996
Based on UNCITRAL model law of 1985 and its ruels of 1980.
Lok Adalat as unique measure in India
With evolution of ADR, need for a simple alternative for civil court was seen. Lok Adalat
(Peoples' Court) concept and philosophy is an innovative Indian contribution to the world
jurisprudence.
The First Lok Adalat was held in Gujarat in 1982.
The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two
other members, usually a lawyer and a social worker. There is no court fee. If the case is already
filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat.
The procedural laws, and the Evidence Act are not strictly followed while assessing the merits of
the claim by the Lok Adalat. Main condition of the Lok Adalat is that both parties in dispute
should agree for settlement. No appeal lies against the order of the Lok Adalat. Lok Adalat is
very effective in settlement of money claims. Disputes like partition suits, damages and
matrimonial cases can also be easily settled before Lok Adalat, as the scope for compromise
through an approachof give and take is high in these cases.
As per the legal services authorities act of 1987, one aim of it was to promote lok Adalat. This
gives statutory recognition to lok Adalat.
Abraham Lincoln has observed:
"Discourage litigation. Persuade your neighbours to compromise wherever you can. Point
out to them how the nominal winner is often a real loser - in fees, expenses, and waste of
time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There
will still be business enough."
Implementaiton of ADR in india
First arbitration act in 1940 was a failure due to too many loopholes. Finally in 1996 passed. But
this applies to big people. Lok adalats have not been fully implemented.
Problems in implementation
1. Attitudes: want to win. If you can’t win, ensure other party doesn’t. try to make it win-
win for both.
2. Lawyer and client interest – this is different. Sometimes, client might not want
settlement.
3. Legal education: next generation, society’s greatest opportunity is to tap human
inclination towards collaboration and conciliation. So education is needed
4. Impediments to settlemetns: poor communication, lack of expression of emotions (in
family matters), different views of facts, different views of legal outcome if settlement
not reached(one party might feel he has 90% chance to WIN if trial); Jackpot syndrome
(The “Jackpot” syndrome: An enormous barrier to settlement often exists in those cases
 where the plaintiff is confident of obtaining in a Court a financial recovery far exceeding
its damages, and the defendant thinks it is unlikely. For example, the case may be one in
which the controlling statute provides for the discretionary award of punitive damages to
the successful plaintiff. If the underlying damage claim is for Rs. 10 lakh, and the
plaintiff thinks that Rs. 50 lakh in punitive damages is a real possibility while the
defendant does not, the vast disparity in case valuation may make settlement close to
impossible.
5. Ignorance of law.
6. Corruption
7. The major lacuna in ADR is that it is not binding. One could still appeal against the
award or delay the implementation of the award.
8. Rules of procedure are being formulated on a case by case basis and the rules made by
the parties themselves, with maybe, some intervention of legal professionals. However, a
general guideline and a stipulated format would assist in bringing clarity to the
formulation of an ADR award. This would also help in cutting down ignorance and assist
in better negotiation.

READ THE TABLE WHICH COMPARES MEDIATION, CONCILIATOIN AND LOK

ADALAT

MODULE 5 – GENDER AND LAW

CNR Rao article
In vedic perid, there was less equality. Then buddhism emerged which brought equality for
women. Buddhism was predominant in Maharashtra.
STATUS OF WOMEN IN ANCIENT AND NEW INDIA
Women in vedic and post vedic period
Women had freedom. To move around, etc. had equal edicational opportunities, position in
marriage was – women never informed about men. Had to mary one decided by elders.
Women in buddhist period
Women were becoming sanyasis. Buddhism was way to break shackles of family.
Status in medivial period
No political decision, poor position in marriage, polygamy was allowed (women treated as
property), there was sati, widow aws considered as a burden.
Bhakti movt. – Meera, Tulsidas, others stood for women rights for worshipping. Male could take
sanyasa with wife’s permission.
Status of women in Modern India
a. During british rule
Liberal western principles came. Many movements against women atrocities like sati, widow
remarry act (cos of Eshwar chand vidyasagar), Seva samaj (Dayanand saraswati) all took place.
Girls schools began. They also participated in freedom struggle. Many social legislations
enacted like sati act, widow remarriage act, child marriage act, married women property act,
etc.
Factors responsible for low status of women – impact of Hinduism (men work and women stay
in home), caste system (child marriage, sati), muslim rule (female seclusion)
b. Independent india
Constitution brought up (imp. Acts are mentioned later)
Problems in modern india – violence and crime against women. Decline in female population.

Gender justice
Gender inequality is primarily an issue of unequal power relations between men and women. It
violates human rights, constrains choice and agency, and has negative impacts upon people’s
ability to participate in, contribute to and benefit from social, political and economic development.
Types of gender injustice
(a) Working for more time than men
(b) Different pay scales (give eg. Of female actresses complaining)
(c) Ownership inequality (wrt property and businesses)
(d) Survival inequality due to discrimination and all
(e) Bias in distribution of education and health
(f) Bias towards freedom of expression ( give example Of how people ask women to shut up)
To remove such things empowerment and laws need to be implemented.
Constitutional rights for women
Preamble, Fund. Duties and DPSP enshrine in them equality wrt gender. Consti. Can also have
positive discrimination for their alleviation. India has ratified many regulations or plans for the
same and one important convention signed by india is Convention on Elimination of All Forms
of Discrimination against Women (CEDAW) in 1993.
Constitutional provisions
• Article 14,15,15(3) which talks that positive discrimination for women is good, art. 16 -
equality for everyone for public posts.
• 39(d) – equal pay
 • Free legal aid to everyone – 39A
• Just and humane conditions of work for maternity relief – art. 42
• To renounce practices derogatory to women -51A(e)
(it is also because of this, certain movies are not given certificates where women are shown
in bad way)
• 234D – 1/3 seats in panchayat to be reserved
• 234T – 1/3 seats in municipality
Legal provisions
• IPC provisions like 376 (rape), 304 (dowry death), 498A (cruelty against women),
354(outraging modesty), section 354A (sexual harassment), 354B(disrobing),
354C(voyeurism), 354D(stalking).
Special initiatives for women
• National commission for women: set up in 1992, to study and monitor all matters relating
to the constitutional and legal safeguards provided for women, review the existing
legislation to suggest amendments wherever necessary, etc.
• Reservation for women in local self help group: The 73rd Constitutional Amendment
Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all
elected offices in local bodies whether in rural areas or urban areas.
• National plan for action girl child (1991-2000): ensure survival, protection and devp. Of
girl child
Gender justice in justice system
Currently there are only 3 judges in SC (Indira Banerjee, indu Malhotra, R. bhanumati).
Including them, till date there were only 8 women SC judges. The present 3 judges constitute
only 10% even now. In H.C it is less than 12%.
To resolve this, it is the collegium which needs to take active actions. The collegium should
be in a position to discuss, candidly, ideas about the need for moving towards seeking a larger
representation of women in the higher judiciary. Need to develop an advisory board which has
women judges of SC and HC while appointment. Such tweaking of procedure needs no law
but leadership of some judges. While the public and private sectors have their own share of
challenges, the judiciary is one such institution that everybody looks up to when seeking
inspiration.
Some judgements
State of Rajasthan v. ShriNarayan: wrt to rape, SC held they would usually accept what the
victim lady has said regarding the incident.
Bharwada bhogibhai v. State of Gujarat: court stated“In the Indian setting, refusal to act on
the testimony of a victim of sexual assault is adding insult to injury.”
Case of Poolan devi’s movie: certificate not given cos nudity. But held -give certificate.
Femenism
In 19th century, men dominated. Women were restricted to house holds. Restriction on women
voting, owning property and had no control over their own income.
Elizabeth cady stanthon – born in a progressive family. Highly educated woman. Women
invited her to tea parties where they would discuss women related issue. They decide hold a
meeting. Hence the Seneca falls took place in 1848 in the US.
Over 300 people came. They declared emancipation. Discussed about right to vote. 12
resolutions were passed.
Newspapers mocked them and shamed them. Some women left the movement. But it did not
stop.
1st wave:
Focused on only upper- and middle-class white women. Wanted right to vote, working
conditions, wages, etc.
Finally, in 1920, passage of 19th amendment – women got right to vote.
2nd wave:
fought social and cultural inequalities beyond basic political inequalities. This was born out of
civil rights movt. Sexuality and reproductive rights asked for. This was inclusive like women
from different backgrounds were there. There was a sisterhood. Difference b/w sex and gender
came. Objects like lipstick and high heels became male gender oppression. Fashion shows and
all were boycotted.
3rd wave:
More inclusive. This was new feminism. Asked for unity among all women for feminism. The
term third wave is credited to Rebecca Walker, who responded to Thomas's appointment to the
Supreme Court with an article in Ms. magazine, "Becoming the Third Wave". The third wave
saw the emergence of new feminist currents and theories, such as intersectionality, sex
positivity, vegetarian ecofeminism, transfeminism, and postmodern feminism.

Women Empowerment- definitions and theories

The elementary reason for why majority of women even in 21st century are home makers is is
illiteracy and this creates a hindrance for the women to earn their livelihood. Illiteracy along
with social orthodoxy not only adds to the problem but makes it impossible for the women to
work outside. but times are changing fast and there is a ray of hope. It has been identified that
it is necessary to educate the women for empowering them. Many NGOs and the government
both are working for bringing the women out of this condition. They are not only encouraging
women.s employment but also helping them to save and get financial support, a prerequisite
for getting equal status in the society.
One main reason for empowerment is the way the society has developed. Empowerment has
had a important relation with devp.
Definitions of empowerment: ( see the table)
• Bennett – it is enhancement of capabilities of individuals to influence and hold
accountable institutions which affect them. E.g. when women are capable to hold
account people who suppress them, harass them, that is empowerment.
• Narayan – empowerment is expansion of assets and capabilities of poor to participate
in, negotiate with, influence, control, and hold accountable institutions that affect their
lives. E.g. women getting jobs and in those jobs able to fight for equal pay and all.
• (note: difference b/w Narayan and bennett is in bennett not necessary for participation.)
• World bank – increasing the capacity of individuals to make choices and to transform
such choices into desired outcomes. Central to this are actions which both builds assets
for them and also improves the efficiency of institution which governs use of such
assets. E.g. women work for SHGs. They also gain and the SHG also grows
• Kishore – empowerment has come to denote womne’s increased control over their own
body, lives, environments, their decision making, self reliance, legal rights, etc.
• Batliwala – empowerment is how much influence one has on external actions that
affect him. E.g. how much influence do I have over my marks? Lol. This is no example.
• Rowlands – more than participation in decision making, empowerment is the process
that leads people to perceive themselves as able and entitled to make decisions.
Amartya Sen and Nussbaum’s capabilities approach on women empowerment
Person’s capability to live a good life is defined in terms of the set of valuables like 'beings
and doings' like being in good health and having loving relationship with others which they
have access to Empowerment and participation are decisive elements of achieving freedom
(being is like living in a welfare, and doing is empowering). In assessing people.s level of
freedom in a society, Sen evaluates both the well-being aspect and agency aspect of
freedom. On one hand the well-being aspect is passive and indicates individuals own
advantages related to quality of life such as being well educated, nourished and healthy.
On the other hand, the agency aspect which is related to individual's actions suggests
Exercising their Choice to Achieve freedom And wellbeing.
On one hand the well-being aspect is passive and indicates individuals own advantages
related to quality of life such as being well educated, nourished and healthy. On the other
hand, the agency aspect which is related to individual's actions suggests exercising their
choice to achieve freedom and wellbeing. He has insisted that women should not be
understood as passive recipients of welfare instead they should have the ability to find a
job, earn an independent income and participate in decision making processes within and
outside the family.
Microfinance on the empowerment of women is to be assessed in terms of these Commented [ch1]: Microfinance is a category of
capabilities. Freedom in one area that is of being able to work outside the household seems financial services targeted at individuals and small
businesses who lack access to conventional banking
to help foster freedom in other areas also, by enhancing freedom from hunger, illness and and related services.
relative deprivation (Sen, 1999). This is the support for the case of micro-finance, which
enables women to earn an income outside the household. Thus, the assessment of
microfinance in accordance within the context of Sen's capability theory will particularly
focus on its impact on education, health and the empowerment of women.
Benefits of micro finance: a. incr. woman’s social status, gender equality. B. empower
woman by giving them decision making power.
This approach is used by nassbaum within a philosophical framework. She applied
capability approach to feminism. She has mentioned that women are not like natural
resources which could to be used by everybody. So need to use their capabilities. This task
Nussbaum has undertaken illustrates the fine line between the respect and preservation of
a culture and the conflicting agenda it has in emancipating women from patriarchal
structures.
Theories of empowerment
4 factors have led to rising gender equality
(a)Socioeconomic devp.; (b) rising gender egalitarian attitudes that transform economic
devp. Into cultural process of human devp. (c) historical legacies stemming from a society’s
cultural and political traditions (d) institutional design factor (legal rules and provisions)
But it has not been recorded as to what kind of effect each of these factors had on gender
equlatity. This is done here. As to how each of these led to gender equality.
4 central aspects of gender equality are:
a. gender equality in basic living conditions (will see gender devp. Index)
b. gender equality in civic actions (women participating in any civic activity,
demonstrations, etc.)
c. gender equality in positional empowerment (see women’s presence in administrative
and managerial power position).
d. Gender equality in political representation ( no. of women in national parliament.)
These 4, move after another. Fisrt if basic equality, then can have civic equality, and if that
then can have positions and then represent.
 4 explainations of gender equality
1. Classical modernization perspective that focuses on economic development.
Economic devp leads to make women eligible for positions of social power. increased
economic development associates with a more broad based distribution of educational and
occupational resources. Greater access to educational and occupational resources increases
women’s chances of professional development, creating a larger pool of women eligible for
power positions such as political office.
2. Cultural Modernity: The Human Development Perspective
This is the more recent human development view focusing on emancipative cultural changes that
give rise to gender-egalitarian attitudes and self-expression values. The theory highlights changes
in modern societies particularly conducive to women’s empowerment and therefore establishes a
link between cultural modernity and publics that value greater equality between genders.
modernization comes in many forms. While all the measures reviewed here relate in some fashion
to women’s empowerment, the strongest, most consistent findings show that gains in gender
equality are most dramatic in countries with high levels of development and strong emancipative
values. Thus, measures of economic development should strongly relate to the measures of
women’s empowerment.

3. The historical legacies perspective which emphasizes the influence of cultural and
political traditions (This shows how culture and politics have affected)

As societies secularize there is greater deference to rationality and expertise, and this typically
gives rise to the modern state and widespread social services. During this transition, traditional
units restrictive of women’s development such as the family and the church lose their authority as
individuals place greater emphasis on rationality and individualism.
Political parties ideologies and all.

4. Institutional design perspective Commented [ch2]: Institutional theory is a theory on

5. the deeper and more resilient aspects of social
structure. It considers the processes by which
variation in institutional characteristics mediates mass support for women’s empowerment and the structures, including schemes, rules, norms, and
pool of women eligible for political office in ways that either enable or constrain women’s routines, become established as authoritative
attainment of political leadership. Three aspects of the political system find support in this guidelines for social behavior. [1] Different components
of institutional theory explain how these elements are
literature: the strength of democracy, the electoral system, and gender electoral quota systems. The created, diffused, adopted, and adapted over space
oppressive, unequal treatment of women clashes with the democratic idea of human equality. and time; and how they fall into decline and disuse.

Gender Budgeting Commented [ch3]: Gender budgeting means

preparing budgets or analyzing them from a gender
GB is a tool for gender mainstreaming. It uses budget as an entry point to apply gender lens to perspective. Also referred to as gender-sensitive
budgeting
entire policy process. It is concerned with gender sensitive legislation, policies, plans,
programmes, allocation, etc. to empower women, just legislations won’t do and we need to set
aside asome money for the same.
Reasons why gender budgeting is needed: to provide equality: e.g. Disha is a scholarship scheme
of the Department of Science and Technology that provides support for women scientists. This
scheme helps re-entry of women scientists after a break in their career paths due to social
responsibilities.
8th five year plan said need to keep aside some money for women. To build this up, in 2001, Natl.
policy for the empowerment of women was adopted. Subsequently, an expert comitte was set
up to set the gener budget. Finally, the 11th plan (2007-2012) said gender budgeting will be
encouraged in all ministeries and departments. Efforts will continue to set up gender budgeting
cells in all ministeries and departments.
Gender budgeting cell
In 2004-2005, ministry of finance said all ministeries should have gender budgeting cell. In 2007,
issued a charter for gender budgeting cells. The ministry of women and child development has
been supporting this process. The ministry has conducted man training, workshops, discussions
regarding this.
Capacity building
Women and child ministry has taken this up to inform about gender budgeting and make tem aware
of it. Many bodies like NCERT and all have supported Ministry of women and child to develop in
house GB expertise
Collaboration with gender newutral ministeries
Have asked ministeries of urban devp, ministry of Information tech, which are gender neutral to
intergrate GB in their ministeries.
Gender budget statement
Gender budget statement had all data of ministeries wrt their budgeting. Before GB, there was no
way to estimate the govt. expenditure towards women.
Challenges in implementing GB
Strengthen GB cell.
Ensuring sex disaggregated data in gender neutral sector.
Building technical expertise.
GB cells should integrate gender equity into all their plans.

MODULE 6 – LAW AND DISADVANTAGED GROUPS

CHILD RIGHTS
Children, owing to their developing mind are vulnerable to the environment they are in. It is of
utmost importance that such environment is made suitable for their growth and development,
regardless of whether such child is in conflict with law or not and be given adequate care and
protection of the law. No nation can flourish if children of such nation suffer, therefore India with
the help of various international, national and state mechanisms tries to secure the rights of the
children as has been discussed above.
Child rights – human right sof people below 18.
Childline - 1098
United Nations Conventions on Rights of the Child (hereinafter, CRC), 1989
Ratified by india on dec. 11, 1992. It is based on four basic principles:
• Non-discrimination (Article 2)
• Best Interest of the Child (Article 3)
• Right to Life Survival and Development (Article 6)
• Right to be Heard (Article 12)
The provisions of the CRC are
PartI (art. 1-41): rights of children and obligation of govt. This involves- survival rights,
deelpomental rights, protection rights, participation rights ( does participation rights mean kids can
tell what their parents can do? No parents need to just hear the opinion of kids. But then decide on
best interest).
Part II (art. 42-45): how provisions of CRC needs to be implemented.
Part III (46-54): how to sign and shit.
Three optional protocols have been introduced by CRC – on sale of children, prostitution,
pornography; involvement of children in armed conflict; rights of child on a communications
procedure. The last one hasn’t been signed by india.
Constitutional provisiosn regarding rights of children
Art. 14; 15(3) – state man make discriminatory laws for upliftment of women and children; art.
21,21(a)-state to provide free education; Art. 23 – prohibits trafficking and beggar;24 –
employment in hazardous industry; art. 39(e)- state should try to ensure at tender age, due to Commented [ch4]: 39A – free legal aid
economical difficulties, kids aren’t made to work; 39(f)- opportunity given to kids to develop; 41- 39d – equal wages
These two come in women wala module.
to give educational opportunities; art. 44 – uniform civil code for adoption laws; art. 45 – free
education; 51A(k) – duty of parents to provide education b/w 6 to 14 yrs; art. 243G – institution Commented [ch5]: 234D – reservation in panchayat
of child care under women and child devp. To panchayat; 234T - muncipality

Other legislation:
IPC: Sec. 83 – nothing is offence if below 7; sec. 293 – selling pornos to kids; s. 317 –
abandonment;
Guardians and wards act, child marriage restraint act(1929), probation of offenders act with help
of juvenile justice act 2000, tries to ensure no one below 21 is imprisoned.
Judgements:
Unnikrishnan v. state of andra – RTE is a FR under art. 21.
M.C. Mehta v. state of T.N – employment of kids in cracker industry agasint child labour law.
Lakshmi kant pandey v. UOI – regulation brought up for trans country adoption
RIGHTS OF DALITS
CONSTITUTIONAL AND LEGAL SAFEGUARD FOR PROTECTION OF DALITS
Art. 366(24) – defines SC
Art. 341(1) – pres. Can specify casres, races, tribes,etc. in different states and all.
Art. 341(2) – can exclude
The safeguards provided to Scheduled Castes are grouped in the following broad heads:
• Social Safeguards
• Economic Safeguards
• Educational & Cultural Safeguards
• Political Safeguards
• Service Safeguards
Social safeguard:
a. Article 17 – abolition of untouchability
b. Article 23 – removal of begar and forced labour. Although it is not specific to Scs, but most
of this incident happen to them.
c. Art. 24 - no child below 14 employed inhazardous industry. Same logic as art. 23.
Economic safeguards
a. Art. 23, 24 and 46.
b. Art 46 – state shall promote educational and economic interests of weaker sections.
Educational and cultural safeguards
a. Article 15(4) allows state to make special provisions for advancement of SEBC.
Political safeguards
a. Reservation of seats in local bodies of states, UTs, legislative assembly, etc.
b. Art. 243D – reservation for SC and ST in panchayat. One third reservation. ( write as to
why in panchayat. Cos in micro level more discrimination in villages and all)
 c. 243T – reservation in every municipality. One third reservation
d. Article 330 – in House of people.
e. Article 332 – in legislative assembly of states.
f. Article 334 – reservation to cease after 60 years.
Service safeguards
a. 16(4) – reservation for appointment.
b. 16(4A) - state can make reservation for promotion. (recent case which upheld this is M.
Nagaraju case)
c. Art. 335 – claims of SC STs should be taken into consideration.
Other legal rights of dalits:
• Prevention of atrocities act, 1989 – crime
• Protection of civil rights act, 1955.
Effectiveness of legal and administration to deal with atrocities.
There are frequent incidents. Not only it affects their economic life, but due to lengthy judicial
process, it does not deter such offences. State can play a major role. Quick judicial process is one
thing.
HR perspective: india signed and ratified the intl. covenant on civil and political rights (ICCPR)
in 1979.

NOTE: remember that video sir showed in class. Dalits are still oppressed. Even among Dalits
there are classes and they treat each other differently. Even in kerala where literacy is high,
there is the stigma (give some examples like cannot walk with slippers on streets where upper
caste live, Munciplaity cleaners are only Dalits, etc.)
RIGHTS OF DALITS - ARTICLE BY SOME ANGREZI CHIKNA

(ARTICLE discusses absence of untouchability from HR and recent succesess. Also discusses
background of indai’s Dalits)
until 1990s, untouchability was seen as a HR violation by UN although there were clear examples
in front of it that it happened. But it is quite puzzling. Because –
i. Untouchability is in great numbers. Not just in india, but in pak, bangla, lanka, Africa, and
famous Japanese Buraku community, etc. are also faced with same treatment.
ii. Untouchability might have been expected to attract greater international concern because
caste hierarchies hinge on beliefs and practices inimical to basic tenets of the modern
human rights movement.
iii. caste stands as a direct challenge to a fundamental underpinning of the human rights
ideal—that all human beings are equal and deserve the same respect, dignity, and rights.
Despite all this HR got concerned only in 1990s in india cos of dalit movements and activisms.
 Background: who are Dalits
4 main hindu varnas. Dalits on lowest. How they came from brahma’s feet. Among the 4 main
castes, there are further classification as Jatis. Most untouchables have now migrated to city
although majority are in villages. To escape from untouchability, they have converted to buddhiism
and all. So todays Dalit is mixed group. There are conflicts among Dalits too based on their
occupations.
Issue of untouchability was imp. In freedom struggle. Gandhi was a major defender of Hinduism
and saw untouchability as a pervasion of Hindu doctrine and asked Hindus to treat everyone equal.
Ambedkar rejected view of Gandhi that Hinduism can be purged of untouchability and did not
want to die a hindu. Hence converted. He also, during freedom struggle asked for separate elorate.
Got it in poona pact. Gandhi against this as this means no unity.
Since independence, much progress. Ambedkar abolished untouchability and brought equality
through constitution. But still discrimination is in india. Especially in some works like manual
scavenging, etc. but dalits have responded to these well. Devp. Has occurred. They are more
informed., politically active, dissatisfied with present govt, etc. e.g. Mayawati was CM of Bahujan
Samajwadi party in UP. The president of india is also a dalit. So politically they are becoming
active.at grassroot level, activism has grown. In bihar and all there are dalit SHG’s to help each
other from upper caste atrocities. Naxalite is something involved in dalit fights. Moreover, there
are dalit ‘ civil societies’. These organistaions seek to raise Dalit consciousness, support
individuals and communities in their day-to-day socio-economic struggles, and encourage
attempts to vindicate Constitutional and legal rights. In addition, transnational development NGOs
with no blood, religious, or cultural ties to the Dalits operated programs to ameliorate such broad
Indian social problems as poverty, landlessness, child labor, bonded labor, and violence against
women.
DALITS ON INTL. STAGE
a. early activism ( had limited success) – 1980-1996
dalit activists across india and southeast asia worked. Their aims different, but had general
objectives. First, they tried raise awareness about atrocities against dalits by talking in intl.
media, conferences, etc. second, activists sought allies who would pressure govt. to implement
exisiting policies. Finally, dalit activists sought atrocities to be seen as HR.
but Indian state opposed this. Said all this problems are overstated. Said it is due to customs
this is happening and state is already trying to remove the evil. And finally, that untouchability
is an internal matter and not subject to outside oversight.
Not listening to this, dalit organisations made their case internationally. But had limited
success. They conducted forums with collaborations with other NGOs but failed to get
attention of major gatekeeper NGOs like amnesty and Humar rights watch (HRW) which are
very important NGOs cos of their popularity and effect in the world. NGOs pleaded in intl.
organisation conferences to make untouchability as a violation of HR. But despite access to
various international organizations, Dalit efforts to win official recognition of caste
discrimination as an international human rights issue did not bear fruit until the late 1990s. in
1996, the UN committee on elimination of racial discrimination added caste based
discrimination under it’s article 1. Indian govt. did not like this cos they said their article 1
mentioned onl racial discrimination and not caste based. So not right.
b. Indian and intl. activity since 1990s
In 1997, another major develpometn occurred. HRW prepared report on caste based
discrimination. Smita Narula researched on this report. her 1999 report Broken People:
Caste Violence against India’s “Untouchables” attracted significant international attention
and helped fuel a sustained upsurge of mobilization both internationally and within India itself.
what was aftermath? Received media coverage and was translated into many languages.
National commission for dalit human rights(NCDHR) (NCDHR brought “black paper) which
was formed in india when HRW had a meeting of all major dalit organistains so as to inform
them about the report (That meeting was necessary to get more funds from ford). Leader of
NCDHR was martin macwan. HRW awarded him one of five outsanding HR activists in
world. He also received another award in new York. Both these events drew audiences of
human rights advocates, policy makers, journalists, and celebrities.
c. UN action since 1990s
Dalits scored important success when UNHR commission issued a resoulution declaring
discrimination based on work and descent is against intl. HR law. It gave out some working
papers on dalits and all. At the same time, the Working Paper held that the term “descent” also
covered situations other than those related to caste. Not surprisingly, the Indian government
strongly opposed these efforts. As one measure, it did not allow foreign NGOs to enter india
to attned dalit conferences. And another, it funded dalits who supported govt. govt. tried to
remove paragraph 73 from a WCAR conference where a draft was to be released. That para
said to the govt. to take all emasures to prohibit discriminatin. Inspite of all this it was a success.
It got attention internationally.
d. Other intl. activism
EU organs, dutch organs and all worked towards caste discrimination.
Progess and success of dalit activism in intl. level
End of cold war led to interest in HR. dalit movt. Grew and got attention due to organisational
factor and rhetoric factors.
a. Organizational factor
There was a cohesive national movt. Internationally,dalit’s organizational capacaity increased.
Many organisations liked IDSN were formed. Broken people report and intl. prize to martin
macwan brought in great publicity. So without support of NGOs it is difficult to say dalit movt.
would have been like this.
b. Rhetoric factor
In addition to these organizational developments, Dalits changed the rhetoric surrounding
caste-based discrimination. the NCDHR and IDSN used protest marches, manifestos, and web-
pages to continually emphasize the magnitude of human rights violations both in India and
abroad. For example, in its initial campaign manifesto, the NCDHR states, “every hour 2 Dalits
are assaulted, every day 3 Dalit women are raped, every day 2 Dalits are murdered, every day
2 Dalit houses are burnt down.”
Finally, the international campaign has addressed the Indian government’s claim that the
Dalits’ situation is unique to Indian society. The campaign did so in two ways: first, by
accepting that caste-based discrimination is framed within the broader terminology of work-
and-descent-based discrimination; and second by identifying populations outside India and the
Hindu cultural sphere who suffered this form of discrimination.
DISABILITY RIGHTS
NOTE: Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999 was
amended to Rights of Persons with Disability Act, 2016
Though the term “disability” carries with it the assumption of a lack or deficiency whether
physical, mental or sensory in respect of some people but there are lots of exemples that
sometimes these people proved themselves as differently abled person by their intellectuality
or positive attitudes and outlook towards life. So it is imp. To study the law of disabled by
keeping in mind all this.
Disability rights debate is not about enjoyment of specific rights, but about equal effective
enjoyment of all rights without discrimination. Govt. should take this duty. India is one of first
signatory of UN convention of persons with disability.
In all societies disability has by very nature of their condition have been assumed to be inferior
and medical deficit. However, it has to be acknowledged that the word disability is itself not a
homogeneous category, subsuming under it different kinds of bodily variations, physical
impairments, sensory deficits and mental or learning inadequacies, which may be either
congenital or acquired.
But despite UNHR in 1948, they are treated differently. They are viewed as objects of charity
and welfare. India in 1992 became a signatory to observe full participation and to treat people
with disabilities equally in Asian pacific region. This brought an obligation to bring an act. so
the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act of 1995 got through Parliament. though the Act was passed almost 19 years ago, its
implementation remains woefully inadequate.
Diability laws in india
Article 15(1) – can’t discriminate any citizen (includes disabled).
Article 17 abolishes untouchability on any citizen.
article 21 gives them right to live.
Art. 23 – no humans can be trafficked. And art. 24 which says children includes disabled.
Art. 25 gives the disabled also freedom of religion.
Art. 32 – can move SC for writs
Every disabled can vote.
Disabled and educational laws
RTE is for all citizens. 29(2) says no one can be stopped from attending a state maintained
educational institution. Art. 45 for free education applies to them.
Disabled and health law
Art. 47 to raise level of health and nutrition of its people. Mental health act 1987 is one thing
brought up.
Disabled and family laws
Following will make a void marriage: lunatic or idiot; unable to valid consent; sapindas; either
party has living spouse.
Rights of disabled are covered in specific provisions in different marriage acts.
A Disabled person cannot act as a guardian of a minor under the Guardian and Wards Act,
1890 if the disability is of such a degree that one cannot act as a guardian of the minor.
Disabled and succession
As per hindu succession act, disability would not disentitle a person from property. The
position with regard to Parsis and the Muslims is the same. In fact a disabled person can also
dispose his property by writing a ‘will’ provided he understands the import and consequence
of writing a will at the time when a will is written.
Disabled and labour laws – not spelt out well in the labour law
Disabled and income tax concessions
Reduction of tax is given to people with disability. E.g. if their salary is clubbed with their
parents, then a reduction, etc.
Persons with disability act 1995
Gives equal opportunites in nation building. It has preventive and promotional provisions like
education, employment and vocational training, research and manpower development, etc.
Main provisions:
a. Prevention and early detection of disability: surveys, health measures, screen all kids for
one year for ‘ at risk’ cases, awareness campaign, etc.
b. Education: right to free education till 18; removal of architectural barriers; right to free
books, scholarships; non formal education for them; teacher training institute for parents.
c. Employment: 3% vacancies in govt. 1% for- blind, hearing impaired, locomotor disability.;
relaxation of upper age limit, regulation of employment, health and safety measures;govt.
institutes shall reserve 3% sseats.
Non discrimination
Buses, rail compartments, etc. to have easy access; wheel chair accessible toilets in public
places; ramps;
Grievance redressal - If violation of laws, can go here
Mental health act 1987
Following rights given: to be admitted and treatd in psychiatric care, and all. Even prisoners
have this right. If minors addicted to drugs which change their behaviour, treatment needs to
be given. Police has obligation to take a wandering or neglected mentally ill person into care
of govt. they have right to be discharged when good. If they have property, dist. Court will
manage it. Cost for maintenance shall be borne by state govt. patients shall not be treated
undignifiedly or cruelly. Mentally ill cannot be denied salary, pension, etc.
National trust for welfare of persons with autism, cerebral palsy, mental retardation and
multiple disabilities act, 1999
This was amended to rights of person with disabilities act, 2016
So fuck the old act and some features of the new act are:
• Disability increased from 7 to 21 kinds. Even acid attack victim included. Learning
disability also included.
• Govt. has been authorized to notify if new categories.
• Govt.s duty to ensure enjoyment of rights,
• Additional benefits such as reservation in higher education, govt. jobs, reservation in
allocation lands, etc.
• Benchmark disability kid b/w 6 to 18 will get free education
• To strenghten the Prime Minister’s Accessible India Campaign, stress has been given
to ensure accessibility in public buildings (both Government and private) in a
prescribed time-frame
• Reservation in vacancies increased from 3% to 4%.
• provides for penalties for offences committed against persons with disabilities and also
violation of the provisions of the new law. Special Courts will be designated in each
district to handle cases concerning violation of rights of PwDs.
Judiciary and disabled
Judiciary has played significant role.
Javed abidi v. UOI – while saying that give reduction to people with disability to air india,
also said create safe environment for them.
 Chandan kumar bainik v. state of west Bengal – rescued mental patients who were chained
in govt hospital.
TRIBAL LAWS
Tribes
Lanjia Saoras – orissa
Manki-Munda - jharkhand
The two main regions of tribal settlement are the country’s north-eastern states bordering China
and Burma, and the highlands and plains of its central and southern regions. The latter is home to
more than 80 per cent of the tribes, which differ from the north-eastern tribes in ethnicity and in
having experienced greater “intrusion of the Indian mainstream and of the pan- Indian model of
the state, society, economy and culture.” Several tensions (both perceptible and obscure) pervade
relations between tribes and non-tribes, on the one hand, and the tribes and the State, on the other.
largely accepted, solution is to balance the dichotomy between assimilation of tribal peoples and
their independent identity, and delineate the contours of a national policy that would allow them
to preserve their way of life without compromising development.
India has struggled to maintain the balance in practice. The most common problems relate to
recognizing that the tribes have a right to autonomy and not merely decentralized administration;
that they have a right to seek justice within their own traditional or customary laws; and that they
have a right to own and exploit the natural resources in their habitat. These are addressed in
constitution and some statutes. By seeing whther tribes can manage themselves, they are
categorized into 2. One is the NE tribes who are advanced and have been given independent
authority, and the other tribes who are governed by the governors. This is in 6th and 5th schedule
of consti. Respectively. Though an overwhelming majority of India’s tribal people inhabit the fifth
schedule areas, they were only recently introduced to decentralization when the Indian Parliament
legislated the Panchayat (Extension to Scheduled Areas) Act, 1996 (or PESA) exclusively for these
areas this did not work properly.
fedralisam and tribal governance
centre and local govt. local govt. are 2 – urban and rural (panchayat). But still, state has their power
also.so in 1992, to decentralize, 2 new parts came. Part 9 required states to establish local govt.
bodies(panchayats) and part 9A wanted municipalities in urban areas. With PESA, part 9 was
extended to 5th schedule tribal areas. So govt. which had power over these areas had to foster tribal
self govt., even though the 5th schedule was not amended and continued to give control of those
areas to state govt. so it is still a failure.
Authority of centre and state in tribal affairs: 5th and 6th schedule
“Scheduled Areas” denotes the tribal regions to which either the Fifth Schedule or the Sixth
Schedule applies. The Fifth Schedule was, until PESA was legislated, an entirely centralized
system where the communities—the majority being tribal—were directed in their affairs by
provincial governors. So governor could apply or not apply any laws here. There were only 2
restritions on governor- will consult a tribal advisory council and president assent to all regulation.
In contrast, 6th schedule gave autonomy. The schedules devides region into autonomous regions.
Each for a particular tribe. Even here, governor has power, but the courts have restricted them.
Reason why different treatment: both types of tribes are different. 5th schedule ones are not able to
manage themselves. And some communities existed with minority tribal. So autonomy would not
be good.
Panchayat (extension to scheduled areas) act, 1996 (PESA act)
99th part extended to 5th schedule so - any habitation or hamlet “comprising a community and
managing its affairs in accordance with traditions and customs” could now exercise limited self-
government. while devolving power to the local communities the states were to ensure that (i) their
laws comported “with the customary law, social and religious practices and traditional
management practices of community resources,” and (ii) the Gram Sabhas (bodies “consisting of
persons whose names are included in the electoral rolls for the Panchayat at the village level”)
were “competent to safeguard and preserve the traditions and customs of the people, their cultural
identity, community resources and the customary mode of dispute resolution.” So PESA was
considered as a logical extension on both 5th schedule and part 9.
Review of PESA
the tribes feel as much “culturally deprived and economically robbed” as under colonial rule. It
has not given them dignity. They do not get developmental plans, PESA has not prevented
corporations from taking over lands in such areas, tribes lost control over their community. State
employees deceit and fool them. Faced with this onslaught, many tribes have resisted settlers, the
government and private enterprises, and sought to reassert their identity. For instance, in the
Bengal region the Kamatapur tribal movement has cited neglect, exploitation, and discrimination,
and demanded a separate state.
The anathema of state incompetence Commented [ch6]: something or someone that one
vehemently dislikes
Triebes hated for 2 reasons: one: the majority of the states with tribal populations procrastinated
in their decentralization programs. And two: when they did legislate, the states either ignored tribal
“customary law, social and religious practices and traditional management practices of community
resources” or enacted incomplete laws.
Tribals struggle to cope with such laws
State did not give fucks about tribals laws. Abrupt shift resulted in very low tribal participation in
such electoral systems. How some triabls were not able to do this is an example (Manki-Munda,
bhils, etc. could not adopt this).
India forests rights act, 2006
For this bill, 2 oppositions. Environmentalists took example of poaching in sariska santury and
said management of forest, wildlife to be done with complete exclusion of tribes and communities.
Second, ministry of environment said implementing bill will lead to depletion of forest cover. Then
a subcommittee was given the duty to redraft it and it added forest other dwellers into its perview.
he forest dwelling Scheduled Tribes no longer remain the focus of the law contrary to what it
originally envisaged amd this can be found from a critical reading of the act. Like communites will
have to let go of their land and all which have been their since a long time. this act does not consider
that tribals face some draconian laws under forest conservation act,1980 for accessing minor forest
produce. The 2005 act allows them to take it but does not mention that they won’t be punished
under the 1980 act.
Proposal to autonomies
Argued by saying how autonomy is better than decentralization:
Decentralization Becomes an Instrument of Elite Hegemony
Autonomy has been accepted internationally
The International Labour Organization (ILO) Convention 169, which is the only binding
international treaty dealing with Indigenous peoples and land rights, replaced the ILO Convention
107 that had focused on the goal of integration and assimilation rather than on the protection of
Indigenous peoples lands, culture, and distinctiveness. The ILO Convention 169 takes a different
approach by requiring State parties to the convention to respect the cultures and institutions of
Indigenous and tribal peoples, their right to continued existence within their national societies,
their right to establish their own institutions and to determine the path of their own development.
And India ratified it but is not a signatory as they objected to usage of word “indigenous” andsaid
autonomy is bad.
What are the Rights of Scheduled Tribes?
The Constitution of India seeks to secure for all its citizens, among other things, social and
economic justice, equality of status and opportunity and assures the dignity of the individual. All
Rights available to the Citizens of India, enshrined in the Constitution or any law of the land or
any order of the Government are equally available to the Scheduled Tribes also.
Are there any privileges or special rights for Scheduled Tribes?
Scheduled Tribes being backward and isolated from the rest of the population are not able to
exercise their rights. In order to empower them to be able to exercise their rights special provisions
have been made in the Constitution. Framers of the Constitution took note of this fact and
incorporated enabling provisions in the Constitution in the form of reservation and measures to be
taken to empower them to be able to avail the opportunities. Some people call these provisions as
privileges for the Scheduled Tribes but these are only the enabling provisions so that Scheduled
Tribes can avail the opportunities and exercise their rights and safeguards.

MODULE 7 – LAW AS AN INSTRUMENT OF CHANGE

Law and social change article – Yogendra
The interaction between law and society can be seen at several levels: the judicial process and its
socio cultural linkages; law as an indicator of the nature of societal complexity, and its attendant
problems of integration; and finally, law as an agent of modernization and social change.
DIALECTIC OF LAW AND SOCIETY Commented [ch7]: the art of investigating or
discussing the truth of opinions.
Dialectic of law and society has been affected from how we have moved from colonialism to
nationalism ( dialectical as in when a foreign law also is imposed on another country, how it
manages to cope with it). During this phase of change from coloniasm to nationalism, noth law
and society has evolved. Now, the processes of law and social change is quite unique, but this
shares some commonalities from the industrially advanced nations in the crisis and contradiction
of the paradigms of law and society.
How was it in other countries? (ie. How did law transform)
The primary components of modernization of law and social change in such countries are based
on the ideology of rational utilitarianism. Their Gesellschaft model of society implies movement Commented [ch8]: Being rational and in the same time
from status to contract; from community to individual, from participation to administration, from following utilitarianinm.

guild to state, and from empathy to objectivity. Bentham, weber, etc were the ones who acted as Commented [ch9]: According to the dichotomy, social
ties can be categorized, on one hand, as belonging to
bridges of this rational legal system. That means this was a product of laisez faire ethos of a market personal social interactions, and the roles, values, and
oriented legal system. (this sentence means, for the modernization, laws evolved to target beliefs based on such interactions (Gemeinschaft,
individuals than a section of people). German, commonly translated as "community"), or on
the other hand as belonging to indirect interactions,
impersonal roles, formal values, and beliefs based on
Because of the crisis in industrial society in 60s and all, peole started to uestion all the laws and such interactions (Gesellschaft, German, commonly
regulations. So started to look into Frankfurt school, neo marx chool, etc. this swing led to search translated as "society"). This given by Ferdinand
tonnes
of modernizing. There was contradiction on the structures which were there before all this. This
new perception of the legal system and its paradigm obviously inheres the contradictions of an
industrial society its increasing unidimensionality, its failure in the liberation of human
personality, and its dehumanizing abstractness resulting in the alienation of man. This challenge
necessarily brings sociological jurisprudence into full play as the social dialectic tends to deeply
influence the legal system. It spurs the shift from private law, concerned with the security of the
individual, to public law, concerned with welfare and social utility.
In addition to the above, new areas of law in the fields of industry, environment, consumer
protection and social services come into being. These fields are beyond the nineteenth century
conception of the common law and its judicial processes. The deeper implications of the changes
in the industrial society are responsible for these legal innovations as the response to the demand
for basic alterations of the paradigm of industrial society. These structural changes especially in
the society's modes of production and patterns of leisure time, necessitate the redefinition of the
legal order of society at the interpersonal, intergroup, and intersocietal or international levels. New
meanings of "responsibility," "freedom," "civic culture," and "rationality" emerge.
The new challenges and contradictions that legal systems face in these societies is generally
different from ones faced by the developing societies. The dialectic of the legal system in India,
with its entrenched "multiplex of social structures" on the one hand and its multiplicity of
indigenous, colonial, and developmental traditions on the other, is tremendously complex. The
significant element in the interaction between law and society in India is the heavy burden of these
multiple traditions and the social concerns and orientations of each.
Law and society in india
The relationship between law and society in India could generally be studied in three phases: the
traditional or indigenous, the colonial, and the developmental.
a. Traditional phase: The indigenous legal system in India did not have a homogenous
character. It reflected the basic features of the Indian social organisation; it was based on
the principle of "inter-structural autonomy". i.e. the king did not involve with how the local
tribes and all managed themselves (e.g. had panchayats and all). Priests were involved in
law making. And apart from this there was judicial redressal sustem.
b. Colonial phase: Their colonial interests were basically at variance with these traditional
institutions and their linkages. British wanted “order”. The need for '-order" nevertheless
led to the imposition of a new legal system which the British administrators could consider
was an improvisation of the Benthamite utilitarian tradition. Cornwallis opted for an
embodiment of the commands of the government in formal legislative acts. He advocated
administration by independent judicial administration in order to both secure private
property and control the abuse of executive power. Judidcal administration of Cornwallis
stayed. Its main features include : the establishment of a British controlled court in every
district to administer law and order, the administration of personal law in accordance with
the customs of each religious group, and the settlement of revenue matters according to the
principles of the pre-existing Muslim law of usage. And the judiciary had to modelled on
grounds of how british courts were. Dist. Court had to be assisted by hindu oriests and
muslim priests. Codification accompanied this structure of legal administration. Macauley,
president of the first Law Commission set up in 1834, produced the draft of the Indian
Penal Code which became law in 1860. There were many acts brought up. This spurt led
to emergence of a radically different legal order and had a negative effect directly and
deeply upon the traditional laws. New classes of legal practitioners, judges came up. The
introduction of the colonial legal system led to the arousal of aspirations and demands for
positive rights by the deprived classes and communities. There were many movements and
this led to creation of constitution post independence and provided broundaries for social
change now.
c. Developmental phase: (law and society post independence)
The national movt. Failed to make a indigenous system post independence. Gandhi said we
need indigenous law in consti., but not agreed and not implemented. But some were accepted
like panchayat and all. But panchayata system didn’t have support till the ashok Mehta
committee came in 70s.
While evaluating the need for indigenization of the legal system, the Law Commission of 1958
did not see any major contradictions between the present legal system and the "genius" of the
people. the opinion of the Law Commission, the Indian legal system had, in the course of its
functioning, undergone modifications adequate to render the imprint of the alien system more
suitable to modern Indian conditions.
Law and social change in india
The ideology of social change which has been adopted by India after independence is enshrined
in the Constitution. It incorporates the elements of both the liberal democratic values and the
Gandhian values of social change. This can be see as to how there is dualism of FRs and DPSP.
The former is rational, liberal and individualistic in ethos; the latter asserts the principles of
communal welfare, decentralisation of power, etc.
The Constitution thus brings out two apparently conflicting principles; it presents universalism
and particularism in the same ideological package of social change.
The civic model of change, as it derived from the Constitution, could not logically recognize
primordiality, caste, religion, and ethnicity. It could not leave the most exploited, weak and
vulnerable groups in the society at the mercy of the market forces of social change which
always structurally favour the right and the strong. Hence, reservations, protective discrimi
nation, and special favour to religious minorities and weaker groups emerged. With the aid of
legislative reforms, the strategy of change implicit in this model relies on the application of the
pressure of social change through structural changes in the social, economic, and cultural
systems. For this purpose, the Constitution enjoins upon the executive, legislative, and
judiciary special responsibilities.
But different ideas have constitutions with different terms. Marxist – bourgeois document
intended to perpetuate capitalistic ideas. Liberals – elitist. One jurist has called it – civi
revolution. The civic model of change, as it derived from the Constitution, could not logically
recognize primordiality, caste, religion, and ethnicity. It could not leave the most exploited,
weak and vulnerable groups in the society at the mercy of the market forces of social change
which always structurally favour the right and the strong. Hence, reservations, protective
discrimination, and special favour to religious minorities and weaker groups emerged. With
the aid of legislative reforms, the strategy of change implicit in this model relies on the
application of the pressure of social change through structural changes in the social, economic,
and cultural systems. For this purpose, the Constitution enjoins upon the executive, legislative,
and judiciary special responsibilities.
During the three and a half decades of functioning as a democratic nation with planned
development, India has succeeded on many frontiers of social change. The landed aristocracy
stands abolished as a class; the power structure in the villages has passed almost completely
from the traditional rural elites to a new rural middle class. The monopoly in higher education,
previously a privilege of the upper castes and classes, has now slowly started percolating to
the middle classes in the villages. These changes are the results of legislation and other reform
measures. Another impact is how land reforms have led to growth of agriculture. E.g green
revolution, etc. Another important area where "civic revolution" seems to have made a
successful impact in India is in area of electoral behaviour. Electoral awareness has increased
throughout the country as the election procedure has spread into the village panchayats, the
nyaya panchayats, the assembly, and the parliamentary levels. Another positive social change
 which has taken place following independence is in thi field of industrialisation and growth of
the entrepreneurial classes.

CONTRADICTIONS OF SOCIAL CHANGE AND LEGAL SYSTEM

The rise of the middle class in villages and cities has led to hostile attitudes toward the weaker
sections and the poor. (had seen that thing that Dalits have higher dalit class and lower class
and they do untouchability and shit among themselves. MOFO) The exploitation of the
labourers by rich peasants held under bondage through the extension of loans has been h%ld
legally void, but there is evidence of its perpetuation. Minimum wages for labourers in the
unorganised agricultural sector stand as one piece of evidence and the lack of uniformity in the
introduction of small scale enterprises and shops is another.
Evaluation studies show that social and economic reform measures undertaken by the state for
the benefit of these groups are not successful in reaching them. (elaborate)
Indian system is trying to reduce this. Brought legal aid - Article 39A of the Constitution of
India, provides for equal justice and free legal aid. And Legal Services Authorities Act, 1987
brought. There has, in addition, been a significant response from the bar and from the bench. The
Supreme Court of India has started allowing third party petitions by voluntary social workers and
associations on matters of social concern (give example of some PIL). (ONE MORE THING
BROUGHT IS RTI – will discuss w.r.t. another artile itself. But remember the relation)

RTI – History and RTI movement

Transperency VVIP. Forst transperencey law in Sweden in year 1776. In South Asian region, T.N
was first state to bring FREEDOM OF INFORMATION bill in 1997. In national level, Pakistan
in 2002. India had prepared a draft RTI bill which was checked by Shourie committee.
In india, it was not from birth of democracy., but the depreciation of democracy that transparency
movt. Began. India’s RTi,2005 is one of the strongest. Even better than the new WB’s bill.
In india, all the three pillars are answerable to each other. People cannot hold them accountable.
But institutions of govt. have proved tobe ineffective watchdogs. Even because of privatization,
was not able to break the Sarkar raj. There were emergence of naxals or Maoists in some parts
agasint the govt. and an alternate to this was the RTI movement. started around village Devdoongri,
in Rajasthan, in the early 1990s. Reacting to similar types of oppression, corruption and apathy, a
group of local people, led by the Mazdoor Kisan Shakti Sangathan (MKSS), decided to demand
information. “Armed” with this information, they proceeded to confront the government and its
functionaries and demand justice. From these modest beginnings grew the movement for the right
to information, a movement that could promise an alternative to the gun. But to find whether it is
a good alternate, need to see history of both armed and RTI movt. Common b/w both is there is
frustration against govt. but as per outcomes, RTI has had better outcome than armed. In India, so
far, it has performed well in addressing individual grievances, resolving specific problems, and
exposing individual corruption.
Post independence, there was demand for transparency ( eg. Of train accidents and lathi charges).
Loss to china in 1960s made people angry and they started to question. In 1975, SC ruled in State
of UP v. Raj narain that Right to know is a VVVIP. Finally in 1982, SC said it is FR. Despite this
was not implemented. Soon after Bhopal gas tragedy, cos of environment issues, peple started to
question more.
1990 saw birth of RTI movt. There were 3 stakeholders: (a) people’s movements working on
ensuring basic economic rights and access to government schemes for the rural poor ( found out
poor people not paid propely and all); (b) fighting for the human rights of various individuals and
groups, especially in conflict prone areas of India; (c) environmentalists
The kisan sangh of rajasthan started everything. Till then it was only an urban thing. Now even
rurals started asking.
Soon a meeting convened and National conference for people’s RTI (NCPRI) formed and decide
need a law. Then sent to govt. which sent it to Shourie committee. By this too much demand and
even govt. bodies realized it. In 1999, first union minister allowed the public to scrutinize his docs
and all. It was ram jethmilani. But this order was quickly reversed by SC, shook the whole govt..
and bureaucracy. In states, state transperencey bills were passed. Because of a case, freedom of
information act passed in 2002 by both legislatures. But funnily, did not get presidents assent. In
2004, congress came into power. They brought in regulatory bodies to advise and all for the bill.
In 2004 a bill was drafted. But this was applicable only to centre and not state. Soon, bodies met
president and finally deicded to change that. And RTI came in 2005. Phew.
Recent threat – tenure, salary, and pension of chief information commissioner will be decide
by centre as per new amendment. Before it was autonomous.
https://www.moneycontrol.com/news/economy/policy/why-the-amendments-to-the-rti-act-are-
far-from-routine-4244271.html

JUDICIAL ACTIVISM IN INDIA

judicial activism deals with the political role played by the judiciary, like the other two branches
of the State viz, the legislature and the executive. it is related to problems and processes of political
development of a country. Judiciary can do this when the other two bodies fail to do their duties.
(use separation of pwer to ay it can’t, but well, when other two fuck things up, judiciary can take
it up. Use some recent examples like 377 – legislature didn’t do anything. Kept mum. So SC
decided and told legislature to develop it wrt their rights and stuff).
Generally, judges are evaluated as activists by various social groups in terms of their interests,
ideologies and values. As Baxi explained in his erudite style, to answer a question as to who is an
―activist‖ judge is rather difficult, since the labels ―activist‖ and its opposite the ―restraintivist‖,
are used by those who specialize in judging the judges. There appears to be at least five identifiable
groups of people who judge the judges. 5 type of people who judge judges are:
A. the scientific judges of judge‘s viz., those including law teachers, social scientists and
investigative journalists.
B. the ―managerial‖ judges of judges which group includes the top echelons of bureaucracy
and the supreme executive (Prime Minister), for the management of acts like appointment
and transfer of judges etc.
C. the lawyers some of whom feel that it is their professional duty to judge the judges and
some others who felt that it is their exclusive right to do so.
D. so-called ―victims‖ of use of judicial power
 E. the ―beneficiaries‖ of use of judicial power
all this 5 have different notions as to what activism is.
2 theories as to how judicial activism came:
i. Theory of vacuum filling: a power vacuum is created in the governance system due to the
inaction and laziness of any one organ.
ii. Theory of Social Want: judicial activism emerged due to the failure of the existing
legislations to cope up with existing situations and problems in the country.
Origin
Cos of English concepts of “equity” and all. Marybury v. Madison was first notes case where
judicial activism was shown. ( case as to appointment of judge).
Reasons for judicial emergence: failure of govt., pressure on judiciary to jump in, Judicial
enthusiasm to participate in social reform and change, Legislative vacuum left open, The
Constitutional scheme ( art. 13 is an example. Judiciary can remove any law against FR, art. 32,
etc.), authority to say if an act or law is valid – e.g. indra Sawhney case, role of judiciary as
guardian of FR, public confidence in judiciary,
Judges who took up judicial activism strongly
Desai, and Chinnappa Reddy
Justice Kuldip Singh – environment jurisprudence
Justice K. Rama Swamy – depressed class
j. verma – corruption in high positions
JUDICIAL ACTIVISM IN INDIA
law made from 2 sources. legislature and judiciary. art. 141 also says law made by court is law of
land.
However, the history of judicial activism can be traced back to `1893‘ when Justice Mehmood of
the Allahabad High Court delivered a dissenting judgment which sowed the seed of activism in
India. It was a case of an under-trial who could not afford to engage a lawyer. So the question was
whether the court could decide his case by merely looking at his papers. Justice Mehmood held
that the pre-condition of the case being ‗heard‘ (as opposed to merely being read) would be
fulfilled only when somebody speaks. So he has the widest possible interpretation of the relevant
law and laid the foundation stone of judicial activism in India.
Then in A. K. Gopalan case,sakal newspaper v. UOI (price and size or paper), In 1967,
L.C.Golaknath v. State of Punjab186 that minority view became the majority view, by a majority
of six against five. It was held that Parliament could not amend the Constitution so as to take away
or abridge the fundamental rights.
The court has assumed to itself the power to determine the validity of even a constitutional
Amendment effected under Article 368, in the aftermath of Keshavanand Bharti v. State of Kerala.
Probably, no court in the world under any form of constitutional government exercises such power.
Another example is SC had rejected in 1994 to give advise in ayodhya matter. Another most
conspicuous constitutional area where the Supreme Court has exhibited judicial activism is the
way the court has interpreted the Directive principles of State policy contained in Part IV of the
Constitution, which are non-justifiable, as justifiable in the garb of fundamental rights.

MODULE 8 – GLOBALIZATION OF LAW

Globalization is the process of interaction and integration among people, companies, and
governments worldwide.
The term 'globalization of law' refers to the degree to which the whole world lives under a single
set of legal rules. Such a single set of rules might be imposed by an international body, adopted by
global consensus, or arrived at by parallel development in all parts of the globe.
Large volumes of money movement, increased volumes of trade, changes in information
technology and communication are all integral to a global world. There is also a significant
movement of people from one country to another for trade and work. Such increases in the
movement of goods, labor, and services have weakened national barriers and restrictions that are
imposed by a nation state.
Golbalisation challenges:
Globalisation has led to lack of economic sovereignty and has also affected the local polity. The
responses of the govt. to these are:
1. Because of the unregulated economy, economic devp. Hasn’t taken place in india. Only
developed places get moer developed. E.g. everyone wants to invest in Mumbai, delhi or
bangalore. Small cities won’t get better.
2. Second, globalisation creates a legitimacy vacuum. So govt. bring in local regulateries.
They ensure the vacuum is not there.
3. (not given in the article)
Success of globalization depend on how it is implemented locally. So centre has given power to
states to regulate how they want. Attracting foreign investment is key to success of globalization
and it solely depends on the initiation and implementation of uniform policies by the centre and
the states.
As per DPSP, cannot allow unbridled lassaize faire. Need to regulate it. State needs to propmote
economic, social, etc. welfare.
To answer to the challenges of globalisation, laws should be implemented by looking at how
successfully other countries have implemented laws. Like when one country needs to consider its
oriegn investment, it needs to look not only in terms of capital-flows and wealth creation but
also in terms of technology-transfer and the infusion of know-how and best practices.
Linkage between globalization and law
There is linkages between increasing globalisation and the law. One approach for examining
these linkages is to survey the legal challenges thrown up by the changing socio-economic
conditions. With increasing trade and investment across borders, it is important for all
nations to be sufficiently invested in the multilateral processes of rule-making and dispute-
resolution while at the same time offering a balanced response to the resulting complexities
through our domestic legal systems. In the age of the internet and frequent international
travel – judges, lawyers, academics and even law students from different countries have a lot
of opportunities to interact, collaborate and learn from each other’s experiences. FINDOUT
WHAT IS “LAW MAKING AND LAW SPEAKING”
TRANSNATIONAL LAW
Transnational law regulates actions or events that transcend national frontiers. It involves individ
uals, corporations, states, or other groups—
not just the official relations between governments of states.
An almost infinite variety of transnational situations might arise, but there are rules or law bearin
g upon each. Since applicable legal rules might conflict with each other, "choice of law" is deter
mined by rules of conflict of laws or private international law.

(THAT ARTICLE OF SIR TALKS ON CHALLENGES OF GLOBALISATION. AND

HOW INDIAN CONSTI CAN ASWER IT)

Globalization poses four major challenges that will have to be addressed by governments, civil
society, and other policy actors.

• One is to ensure that the benefits of globalization extend to all countries. That will certainly
not happen automatically.

• The second is to deal with the fear that globalization leads to instability, which is particularly
marked in the developing world.

• The third challenge is to address the very real fear in the industrial world that increased global
competition will lead inexorably to a race to the bottom in wages, labor rights, employment
practices, and the environment.
• And finally, globalization and all of the complicated problems related to it must not be used as
excuses to avoid searching for new ways to cooperate in the overall interest of countries and
people.