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Q.1) Caste as a divisive factor.?

Ans :-

Introduction:

The structure of Indian society is made up of different classes and castes. The
constitution of India guarantees for non discrimination between different
classes and castes through article 14 of Indian Constitution. Right to
equality. Constitution of India with its provision helps weaker section of
society to uplift their position in the society.

Followinf causes of Divisive Factore of caste--

1- Equality is one of the keystone of Indian Democracy, as Constitution of
India guarantees right to equality through Art. 14, 15, 16, 17 & 18. Art. 14 is
genus of right to equility while Art. 15 & Art. 16 are the species of it. Art.
14 plays an important role on elimination discrimination between any
class .

2- Art.14 states that state shall not deny to any person Equality before law
and Equal protection of law within the territory of India.

3- Art. 15 states that the state shall not discriminate against any citizen on
ground of race, religion, caste, sex and place of birth.

4- Art.16 gives the guarantee of equality of opportunity in matter of public

employment. No citizen shall be denied for public employment on the
ground of caste.
5- Art. 17 abolishes untouchability : untouchability is abolished and its practice
in any form is forbidden the enforcement of any disability arising out of
untouchability shall be an offence punishable in accordance of law.

6- As it is recognized the fact that if powerful person and weaker person is

placed equally and subject them to same law that will lead to injustice.
Hence the doctrine of reasonable classification was introduced and
accepted.

**Prohibition of Discrimination on caste-

To uplift the status and position of backward classes and weaker section of the
society and to make them a part of upgrading society. The upliftment of
economically, socially and culturally backward class of people can only be done by
the special effort made by state to meet the object of upgrading the weaker section
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of society by way of laws. To improve the conditions of the socially and

economically backward classes and to make them part of one national political
stream, the constitution of India contain a scheme of safeguards to Minorities,
Backward Classes and Scheduled Castes. Thus, the provision to reserve seats in
the Legislatures, to make reservations in services, to promote the welfare of
socially and economically backward classes and to protect the language and
culture of the minorities are made to achieve the equality amongs unequals by
upliftment Minorities, Backward Classes ,Scheduled Castes and weaker section
of society .TheConstitution of India have also set up effective institutional
machinery to watch that these safeguards are properly executed by the various
governments in the country. This machinery has now been strengthened by
various statutory bodies.

In post- graduate admission Reservation for women in medical courses is not

violation of art .15(1) . as art. 15(3) enables the legislature to make special
provision for women. It is affirmative action including by way of reservation .

In case R.C. Pondal v/s Union of India- A.I.R 1993 –

It as held that the scope of art. 15(1) is very wide and the prohibition contained in
this clause is general and includes both benefits and burdens. The fundamental
right conferred by this clause is conferred on citizen as an individual and this
right is against them who subject to discrimination in the matter of rights,
privileges and immunity given to them as a citizen.

In case Govt. of A. P. v/s P.B Vijaya kumar - A.I.R 1995 –

The object of insertion clause (3) to art. 15 was stated by Supreme Court that, - “
the insertion of clause (3) to art. 15 in relation to women is recognition of the fact
that for centuries ,women of the country have been socially and economically
handicapped, as a result they are unable to participate in socio-economic activity
of nation on equality footing . in order to eliminate this socio- economic
backwardness and this step can bring effective equality between men and
women. Thus, the object of insertion of clause(3) to art.15 is to strengthen and
improve the status of women.”

In case Arumugha v/s Narayan – A.I.R. 1958 –

it was held that if the section of public put forward a claim for an exclusive use
of public well by particular section of people of certain caste as that well is for
public but it is not for whole section of society as a part of custom , it was held by
the court that this custom is not in effect as a modern notion of utility of public
well And it is discriminatory in nature.

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The constitution of India treats Schedule Caste and Schedule Tribe with valuable
safeguards to put them to a active part of society and useful member of society.
art. 14, 15, and 16 of constitution of India provides many benefits of social and
economic advancement and empowerment and social equality of status and
dignity of person, by providing reservation in government services and in
educational institutions for the Scheduled Castes and Schedule Tribes. Scheduled
Castes and Schedule Tribes are the depressed sections of the society who have
suffered for long under social handicaps and thus need special protection and
help for the improvement of their social, economic and political conditions.

The framers of the Constitution of India were determined to eliminate the

scourge of untouchability. With this in view, Art. 17 abolishes untouchability
and Art. 25(2) (b) provides for opening of Hindu temples to the Harijans. To
promote their educational and economic interests, Art. 15 (4) and 16 provide
for reservation of seats for them in educational institutions and in government
services.

In the words of RAY, C.J; "The classification of employees belonging to Scheduled

Castes and Scheduled Tribes for allowing them an extended period of two years
for passing the special tests for promotion is a just and reasonable classification
having rational nexus to the object of providing equal opportunity for all citizens
in matters relating to employment or appointment to public office."

It was emphasized that the basic qualification for promotion, vix, seniority,-was
not being relaxed in case of S/Cs and S/Ts. Only a temporary relaxation was
being given in the passing of the qualification test. This was warranted by their
inadequate representation in the services and their over - all backwardness.
Without providing for such a relaxation for a temporary period. It would not
have been possible to give adequate promotion to the lower division clerks
belonging to the S/Cs and S/Ts. To achieve equality, differential treatment of
persons who are unequal was permissible.

This is characterized as "Compensatory discrimination" or "affirmative

action".

the president notified under Art. 341 that the Scheduled Caste was not a caste
within the ordinary meaning of caste as envisaged by Art.16 (2).S/Cs.The object
of Art. 341 was to provide protection to the members of the S/Cs having regard
to the economic and educational backwardness from which they suffer. However,
the over - all needs 50% reservation evolved in Balaji was "a mere rule of caution"
and was not meant to be exhaustive of all categories.

The majority adopted a very liberal attitude in Thomas as regards S/Cs and
S/Ts and back - ward classes. The result of the pronouncement is to enable the
state to give the backward classes a preferential treatment in many different
ways other than reservation of posts as envisaged in Art. 16 (4). This would,
no doubt, help the backward classes a great deal. The guarantee of equality
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could be completely eroded if this preferential treatment is overdone under

political pressure. Thus, the obligation of the courts to be ever vigilant in this
area does correspondingly increase. After all, preferential treatment for one is
discriminatory treatment for another and, therefore, it is necessary to draw a
balance between the interests of the backward classes and the other classes.
The Supreme Court has shown consciousness of this danger and, therefore, has
laid down a few criteria which a classification must fulfill, viz:

(i) The basis of the classification has to be backwardness;

(ii) The preferential treatment accorded to backward classes has to be
reasonable and must have a rational nexus to the object in view,
namely, adequate representation of the under - represented backward classes:

(iii) The over consideration of administrative efficiency should be kept in view

in giving preferential treatment to the backward classes.

In case Indra sawhney /s Union Of India -1992 Supp (3)(S.C.C - 217)–

it was held that to bring equality among unequals , it is necessary to adopt
positive measures to abolish inequality . the concept of equality implies recourse
to valid classification for preference in disadvantaged classes of citizens to
improve their conditions, so as to enable them to raise themselves to position of
equality with the more fortunate classes of citizens.

In case Abdul Rahman V/s Pinto AIR 1954 :-

It was held that - Identical treatment in unequal circumstances would amount

to inequality. Therefore Art. 14 forbids class legislation, however allows
reasonable classification.

In case State of M.P .v /s Gopal AIR 2003 S.C. 2952 :

It was held that for admission to post- graduate courses for specified disciplines
of gynecology and Anastasia , differentiation between male doctors and female
doctors on their lenghth of services as five and three years in rral area the
eligibility conditions was held to be valid . it was stated that the women can
constitute a class by themselves and the provision of relaxed and reduced
eligibility criteria with continuous Service rendered in rural areas for admission
to post- graduate courses has a reasonable nexus, to be achieved, since women
folk in rural areas have reluctance in being dealt with by male doctors and they
feel more comfortable with female doctors.

In the case SS. Sharma V/s Union of India - AIR 1981 SC 588 :-

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It was observed and held that "The success of state action under Art. 16(4)
consists in the speed with which result oriented reservation withers away as no
longer a need, not in the ever widening and everlasting operation of an
exception [Art. 16(4) as if it were a super - fundamental right to continue
backwardness all the time. To lend immorality to the reservation policy is to
defeat its raison d'être; to politicize this provision for communal support and
party ends is to subvert the solemn undertaking of Art. 16 (1), to caste if
'reservation' even beyond the dismal groups of backward most people,
euphemistically described as scheduled castes and scheduled tribes, is to run a
grave constitutional risk. Caste, ipso facto, is not class in a secular State".

Whether or not reserved vacancies would be deserved or not is a matter primarily

for the government to decide. De - reservation could be restored to only when it is
not reasonably possible within the contemplation of the law to fill the reserved
vacancies.

To fulfil the Constitutional mandate several other Acts were also passed the
Parliament to end the exploitative and discriminatory practices against so-called
lower castes. A few of those legislations are as follows:

 The Untouchability (Offences) Act, 1955, renamed as Protection of Civil

Rights Act, in 1976.

 To check and deter atrocities against SCs, the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 has also been enacted.

 Recently the Government has introduced a Bill in the Lok Sabha in the
name of the Prohibition of Employment as Manual Scavengers and Their
Rehabilitation Bill, 2013 which aims to prohibit the employment of manual
scavengers, the manual cleaning of sewers and septic tanks without protective
equipment, and the construction of insanitary latrines. The Bill seeks to
rehabilitate manual scavengers and provide for their alternative employment.

It is another social welfare legislation whose objective is to bring manual

scavengers or caste Valmikis or Bhangis in social mainstream and to protect them
from various socio-cultural and economic discrimination.

**Origin of Caste System in India

There is no certain date when the caste system came into existence in India. But
according to the Manusmriti, the caste system in India was, in the beginning, a
system of prescribing codes of conduct for people to suit the requirements of their
occupation. Thus, it was based on their occupation. But gradually the occupation
of people became hereditary and the caste system also changed from occupation

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to birth and heredity. Now caste of a person got fixed at the time of his/her birth
and so was his/her social status.

As far as theory of origin of caste system is concerned, the religious theory

explains that according the Rig Veda, which is one of the most sacred religious
texts of Hindus, different Varnas were created from different parts of the primal
Purusha’s (the First Person) body; the Brahmans were created from his head, the
Kshatrias from his hands, the Vaishias from his thighs and the Sudras from his
feet. Some theories also believe that the primal Purusha was nothing but the God
Brahma himself. So according to them, different Varnas originated from lord
Brahma.

**Classification of Castes in Caste System

Castes were first classified according to their occupation. But due to access to
wealth, power, and privilege, two of the upper castes viz Brahmins and
Kshatriyas started to use religious sanctions to monopolize their position. History
tells us the same that the dominant position in society was monopolized by two
main upper castes.

More or less, the situation is still the same. These two upper castes are considered
as superior to the lower castes. And the sanction or validity to this superiority
was provided by various religious writings so that no one should question this
position. Such people in position of power like to perpetuate their strategic
position by means of force or ritualistic customs.

As far as social stratification is concerned, the Brahmins, generally priests and

scholars, are at the top. Next strata consist of the Kshatriyas, the ruling class and
soldiers. Usually, the Kshatriyas collaborated with the Brahmins as they
governed over their empire. A Kshatriya is branded by physical and martial
strength.

Next in the hierarchy are the Vaishyas, or merchant class. It was the duty of the
Vaishyas to ensure the community’s prosperity through agriculture, cattle
rearing, trade and business. The Vaishyas were considered to be weak in
comparison. And they were exploited for by their rulers. The luxurious lifestyle
of the ruling class and wars etc were maintained on the cost of Vaishyas.

Then there were Shudras, the lowest in four Varnas. They are labourers, peasants,
artisans, and servants. Shudras were believed to not have any special abilities and
were considered only capable of serving as slaves to the upper three classes. They
were having no rights or privileges, and were not permitted to perform any
sacrifices or homa, read or learn the Vedas or recite the mantras. They were also
not allowed even to enter into the temples and to participate in any religious
rituals.

These discriminatory practices against so-called Sudras are still prevalent in our
society in large measure.

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Apart from these four Varnas, another section was there which was considered
lowest of them all. They were ‘untouchables’, the outcastes; because they were
not considered part of any of the said four Varnas. These ‘untouchables’ were
there to perform such occupations that were considered unclean and polluting,
such as scavenging and skinning dead animals. These were the most
discriminated and exploited ones; all the four Varnas maintained distance from
them. And it was considered as sin even if a shadow of an outcaste lied on
anyone.

**Varioues Provisions in constitution -

First of all the Preamble to the Constitution envisions India as a nation where
socio-economic and political justice is there; where there will be equality of status
and opportunity and where dignity of the individual is secured.

The Constitution guarantees equality before law (Art. 14), and enjoins upon the
State not to discriminate against any citizen on grounds of caste (Art. 15 (1)).

Untouchability is abolished and its practice in any form is forbidden (Art. 17). The
Constitution mandates that no citizen shall, on grounds only of caste or race, be
subjected to any disability and restriction (Art. 15 (2)).

It empowers the State to make provisions for reservation in educational

institutions (Art. 15 (4) and (5)), and in appointments for posts in favour of SCs
(Art. 16 (4), 16(4A), 16(4B) and Art. 335). Reservation of seats for SCs in the Lok
Sabha is provided under Article 330, in the State Assemblies under Article 332
and in the Local Self-Governments bodies under Articles 243D and 340T.
Further, the Constitution guarantees protection from social injustice and all
forms of exploitation (Art.46). Part III and Part IV of the Indian Constitution has
made various provisions for the upliftment of socially and educationally
backward classes. Many state Governments are also enacting the social
development by giving equal opportunity to all citizens but for special
provisions to backward classes. Among the states Bihar and Maharashtra of the
Mandal Commission's report is implemented are the prime Governments who
are providing special efforts for the uplift of backward classes. Tamilnadu has
69 % reservation.

Article 38 as amended by the 44th amendment provides that the State shall
strive to minimise the inequalities in status facilities and opportunities not
only amongst individual. But also amongst groups of people residing in
different areas etc.

Article 46 of the Indian Constitution has laid down that the state shall promote
with special care the educational and economic interest of the weaker sections

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of the people and in particular, of the Schedule Castes and the Scheduled Tribes
and shall protect them from social in justice and all forms of exploitation.

Article 332 of the Constitution provides for reservation of seats for

scheduled casts and scheduled tribes in the legislative assembly of the
state.

A difficult problem of the day is to define the term 'backward classes'.

Generally, socially and educationally backward persons fall within the category
of backward classes but even after 25 years of the enforcement of the
Constitution, it has not been possible to evolve acceptable criteria for the
purpose of identifying them. As envisaged by the Constitution the Backward
classes Commission was appointed by the President in 1952.

The task to devise positive and workable criteria to identify backwardness

on an all India basis has not yet been completed. No indisputable yardstick
has been evolved for the purpose. For the present, each state defines
backwardness in its own way, and political expediency plays some role in
this matter. There is thus no uniformity in the country in this respect.

In Case K.s. Jayashree V/s Kerala- (AIR 1976 SC 2381)-

The Supreme Court upheld a government order listing backward classes

but exempting there from such families as had an aggregate annual income
to a medical college because her family income exceeded Rs. 10,000/-
annually. The court emphasized that poverty or economic standard is a
relevant factor in determining backwardness. Neither caste nor poverty
alone could be the sole or dominant test, but both are relevant to
determine backwardness. With the improvement in economic position of a
family, social backwardness, disappears. To permit these persons to take
advantage of the privileges meant for a backward personsis to deprive the
real backward poor persons of their chance to make progress.
The Government of India again appointed the Backward classes Commission
(known as the Mandal Commission) under Art. 340 on January 1, 1979. The
Commission submitted its report on 31st December, 1980.

The Commission by and large identified castes with backward classes and more
or less entirely ignored the economic tests. The Commission also ignored the fact
that even among the so - called higher castes, there may be a number of socially
and educationally backward people deserving of help. On the whole, the
Commission's recommendations have proved to.be very controversial.

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In case K.C. Vasant Kumar V/s Karnataka -( AIR 1985 SC 1495)-

The Supreme Court has had an occasion to consider the question of characterising
backward classes. The Karnataka Government wanted to appoint a Commission
to go into this question and the government requested the Court to lay down
guidelines for the Commission in the discharge of its task. However, the judges
have expressed a diverse it of view on this point.

According to the Chandrachud, C.J. Two tests should be conjunctively applied for
identifying backward classes. One, they should be comparable to the scheduled
castes and scheduled tribes in the matter of their backwardness and two, they
should satisfy the means test laid down by the State Government in the Context
of prevailing economic conditions.

Venkataramiah J. has stressed upon relevance of caste factor as an index of

backwardness. According to him, the expression, 'backward classes' can only
refer to certain castes, races, tribes or communities or parts thereof other than
scheduled castes, scheduled tribes and Anglo - Indian Community, which are
backward, and "Caste or Community is an important relevant factor in
determining social and educational backwardness." He has however, suggested
caste - cum - means test as a 'rational test' to identify backward people for
purposes of Arts. 15 (4) and 16 (4) for all members of a caste need not be treated
as a backward. The only point on which there appears to be unanimity of views
is that 'caste' cannot be the sole determinant of backwardness, but it is not an
irrelevant test either and can be taken into account along with certain other
factors. Also, backwardness is something comparable to the position of the
scheduled castes and scheduled tribes.

**Ills of Caste System and Constitutional Provisions

Social stratification on the basis of caste is the main reason behind various types
of exploitation against so-called lower castes, especially those described as Sudras
and Untouchables.

From the beginning of this system, sudras and untouchables were treated as
slaves by so-called upper castes. They were allowed only to do menial works and
all the lowly works but they were given no powers or privileges. All the
privileges were for Brahmanas and Kshatriyas. All the leadership position in
religion, polity, economy or society was assumed and taken hold off by two of the
so-called upper castes; their political or social influence was always minimal.

However there were various social reformers such as Raja Ram Mohan Roy who
devoted their lives for the upliftment of these downtrodden people, various
reform movements were there to abolish the caste system. But it was so ingrained

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in our social fabric that it was next to impossible to change the situation on
ground.

Thus, when India got independence and the Constitution was being framed, our
founding fathers were of the opinion that such provisions should be added in the
text which would lessen the ills of caste system and bring about equality in social
field. Social justice was one of the main objectives of our Constitution.

**The failure of Untouchability Legislation:

Art. 15 (2) prohibits subjection of a citizen to any disability, liability, restriction or

condition on grounds only of Religion, Race, Caste, Sex, or Place of birth with
regard to access to shops, public restaurants, rants, hotels and places of
entertainment, use of wells, tanks, ghats, roads and places of public resort.
Art. 17 of the constitution of India provides as follows; "Untouchability" is
abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of 'untouchability' shall be an offence punishable in
accordance with law." The word `untouchability' is put within inverted commas
and this indicates that the word is well understood by the people and used in
that sense. To ascertain its proper meaning one has to look to "the practice
developed historically in this country.

In case Devarajian V/s Mysore – (AIR 1958) -According to the Mysore High
Court "Untouchability" is any disability imposed upon a person simply on the
ground of birth.

The prohibition of Art. 17 is addressed not only to the state but also to private
individuals. The second part of the Article makes it clear that "Untouchability"
shall be a punishable offence in accordance with law. And the Parliament has
enacted under Art. 35 (a) (ii) of, the constitution the Untouchability (offences) Act
1955, which has prescribed punishments for social religious and other
disabilities. To remove social and religious disabilities Section 3 and 4 of the Act
extend to places of public workship belonging to Buddhist, Sikh or Jaina religion
or persons professing the Hindu religion in any of its forms.

Section 12 of the Untouchability (Offences) Act 1955, lays down a presumption

for the courts in these words: "Where any act constituting an offence under this
Act is committed in relation to a member of a scheduled caste as defined in
clause (24) of Art. 366 of the Constitution, the court shall presume, unless the
contrary is proved, that such act was committed on the ground of
'Untouchability.' Clause (24) of Art. 366 define "Scheduled Castes" as meaning".
"Such castes races or tribes or part of or groups within such castes, races or
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tribes as are deemed underArt. 341 to be scheduled castes for the purposes of this
constitution."

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Art. 15 (4) and (16) - Scheduled caste and scheduled tribes in India are known as
untouchables or Harijans and constitute nearly 15 % of Indian Population. To
promote their educational and economic interests Art. 15 (4) and (16) provide
for reservation of seats for them in educational institutions and in Government
services.

**Reasion of failure of Untouchability Legislation –

So far we have discussed the provisions against the Untouchability. The question
is that note of failure of untouchability legislation; In fact since independence
(Last 50 years) there is a lot of improvement in education and economically and
living standard of these so called untouchability.
Previously all these people usually engaged themselves in the so - called dirty
jobs likes tanning and skinning of hik,s, manufacturing of leather goods,
sweeping of streets, scavenging etc. the present position is totally changed due to
modern system of living and thinking and thus there are many "Untouchables"
are now highly qualified like doctors, Engineers,Judges, Advocates,
Industrialists, contractors Ministers etc. and also in Government Services.
However the few interior places of our country (Remote Places) there is still. This
feeling which requires only communication and time.
Moreover Schedules Tribes also called ABORIGINES, still follow tribal ways,
peculier customs and cultural norms. They are still backward as they live in
inaccessible forests and hilly regions and are cut - off from main currents of
National - life. Most of them love for drink, dance and habitation in remote areas.
For their development there are separate constitutional provisions. It can be said
that still more social awarness is required in Society as only LAW will not help to
remove this blot of "Untouchability".

**Application of test for social backwardness and poverty :-

Article 16(4) promises, the State must apply equalizing techniques which will
enlarge their opportunities and thereby progressively diminished the need for
props. The success of State action under Article 16(4) consists in the speed with
which result oriented reservation withers away as no longer a need, not in the
every widening and everlasting operation of an exception Article 15 (4) as if it
were a super fundamental right to continue backward all the time. To lend
immorality to the reservation policy is to defeat its raison d'etre, to politicize this
provision for communal support and party ends is to subvert the solemn
undertaking of Article 16(1) to casteify 'reservation' even beyond the dismal
groups of backward most people, euphemistically described as SC and ST, is to
run a grave constitutional risk. Caste, ipso facto, is not class in a secular State.For
protective discrimination to justify educational and social backwardness, poverty
or both the Supreme Court has adopted different tests and criteria.
The Government of India has been under constant pressure to make a large
reservations in favour of the various categories of person both in services as well
as admissions to technical institutions. The Court has been a balancing force to
keep such reservations under specified limits to maintain administrative
efficiency or educational standards.
The ratio underlying Devadasan an was that filling of senior posts by not so
qualified candidates in preference to better qualified candidates, while
discriminatory to the latter, was also subversive of administrative efficiency. In
another case the Court emphasized that in the name of advancement of backward
communities, the fundamental rights of other communities, should not be
completely annihilated. A rule limiting reserved vacancies to 45 per cent was also
upheld by the Supreme Court.
In Balaji the Court envisaged backwardness as the ultimate result of poverty
and in Chitralekha it adopted the economic condition as the sole criterion. In
Subhash Chandra case it held that poverty was not relevant to social
backwardness. The Court was of the view that irrespective of the economic
status of all families from backward classes they are entitled to protective
discrimination as the test of poverty cannot be the sole determining factor of
social backwardness. However, the Supreme Court has always been alive to the
pitfalls and political and social imperatives of excessive reservations in services
and admissions to technical and medical institutions.
Mr. Justice Krishna Iyer even questions the effectiveness of reservation as a
social engineering device which cannot be viewed as a permanent feature
but only as a shot terms measure. He advocates for added educational
facilities, cross fertilization of castes by intercastes and interclass marriages
sponsored by a massive state programme as a lasting solution to harijan
problem. Perpetuation of reservation in institutionalized manner is bound to
cause social tensions and unrest in Indian society. Consequently, there is an
imperative need to chalk out altogether a new policy and programme of
harijan upliftment on a massive scale by depoliticizing the reservation issue
and evolving a national policy perception so that social tension do not erupt
and the constitutional goal of social equality and non-discrimination are
realized in reality in an environment of good will, mutual-accommodation
and social harmony so that reservation only remains a temporary accident
ofIndia's history with withering away of social injustice and social tyranny from
Indian society.
As Krishna Iyer, J. remarks, 'The case for social inequality and
economicbalance cries for more energized administrative effort and a
government that fails to repair the depressed lot, foots the public on harijan
welfare. Indeed an awareness of mass of humanity, denied justice for generations,
will not take it lying down too long but may explode Dalit Panthers, as didthe
Black Panthers in another country Jurists must listen to real life and, theory apart
must be alert enough to read the writing on the walls. Where the rule of law bars
the doors of collective, justice, the crushed class will seek hope in the streets.'

**Current Scenario In India :-

The evolution of Indian society and culture has continued its course along with
the march of time. The current situation is captured well by the "People of
India", a large-scale ethnographic project undertaken by the Anthropological
Survey of India from 1985 to 1992 (Singh 1992). It was found that "caste has
weakened to some extent in recent years in terms of its adherence to hereditary
occupation and norms of purity and pollution. It has also acquired new strength
in a political sense as a constituency and as a vote bank"
The survey found that about 75 percent of the 4635 communities studied
followed Hinduism, 12 percent followed Islam, 7 percent Christianity, 2.5
percent Sikhism; 2 percent each, Jainism and Buddhism; and about 0.2 percent
each, Judaism and Zoroastrianism. An interesting finding was that as many as
393 communities comprised followers of two religions, and 16 had followers of
as many as three religions. Linguistically, the survey identified a total of 325
languages belonging to 12 different language families. Apart from the
languages, 24 different scripts were found to be in use. The incidence of
bilingualism was found to be as high as 65.51 percent in terms of the number of
communities.
The change in the rigidity and influence of the caste system also continues. The
emerging national identity seems to co-exist with the castes and communities
acquiring clearly identifiable political identities.
Social progress since independence has served to heighten the awareness of
cultural pluralism....There is an all pervasive sense of 'Indianness' often elusive
and indefinable but ever present as noted by colonial ethnographers. Risely, for
example, in 1891 spoke of an 'equally mysterious thing called national character'
and that 'beneath the manifold diversity of physical and social type, language,
custom and religion there is an Indian character, a general Indian personality
which we cannot resolve into its component elements' (Singh, 1990, pp. 102,104).

It has subsequently been expanded to cover more groups, and has also been
extended from time to time almost indefinitely. There have been attempts by
several communities to get into these special categories which get preferential
treatment, prompting some social commentators to refer to the phenomenon as
"de-Sanskritisation". These developments have led to a much more acute desire
for equality, social as well as economic, on the part of large sections of society. It
has also resulted in the emergence of several political formations whose
ideology is essentially based on what is referred to as "social justice". The entire
system is thus embroiled in an intense and broad-based struggle with multiple
stakeholders and contestants whichare forever increasing in numbers and
resulting in the formation of new groups.
Yet another struggle is ,at the religious and cultural levels. Broadly coinciding
with the resurgence of strong religious beliefs elsewhere in the world (e.g.
Islam, Christianity, etc.) there has also been a resurgence of some strong beliefs
in Hinduism in India. Hinduism has been described as a very broad-based,
tolerant, and resilient faith In Nehru's words, Hinduism as a faith, is vague,
amorphous, many sided, all things to all men. It is hardly possible to define it,
or indeed to say definitely whether it is a religion or not, in the usual sense of
the word. In its present form, and even in the past, it embraces many beliefs and
practices, from the highest to the lowest, often opposed to or contradicting each
other. Its essential spirit seems to be to live and let live.
Being so amorphous, Hinduism allows itself to varying and differing
interpretations. Some political groupings have chosen Hinduism as a platform
which they feel would help them attain political power. Coinciding with
religious resurgence elsewhere in the world, as suggested by changes in Iran,
Bosnia-Herzegovina, and the U.S., it has also become an important and
potentially contentious social and political issue in recent times.
Liberalisation and restructuring of the economy has also been a major influence
in recent years particularly on business and industry in India. India had been
more or less a centrally planned economic system for almost four decades since
independence in 1947. Though there was a fairly well-developed and strong
private sector, the overall economy was controlled and regulated by the
government. While some initial and tentative steps towards easing of controls
were taken in the mid 1980s, a major exercise in restructuring and liberalisation
of the economy was undertaken from 1991 onwards. Far-reaching changes in
the economic environment have taken place in the last few years. Globalisation
is becoming an often-used expression. It is significant that broad economic
policies have continued without any serious disturbance despite frequent
changes in the government with political parties la different ideologies being in
power.
One of the leading social commentators, reviewing the developments in
India as it approached the completion of fifty years of independence,
described India to be a "major socio-historical entity representing one idea
of one civil society that is composed of a small set of closely interrelated
attributes. One large unity composed of diverse yet co terminating
pluralities" (Kothari, He identified the following three major forces which
have strongly influenced India over time and whose interactions have got
"deeper and sharper (as) the Indian cultural landscape took on a more
political thrust": (i) a hierarchical social order through which infinite
ambiguities have been at once tolerated and regulated, (ii) a multi-cultural
framework of governance which has restrained hegemonic and
"majoritarian" tendencies, and (iii) a highly flexible ethical code through
which constant and continuing contradictions, clash of personalities, major
paradoxes in elite behaviour as well as instances of humiliation, acrimony
and hypocritical behaviour in the conduct of public affairs are managed.
In the social sphere, our society is still ridden with the curse of birth based
caste system, with its emphasis on high and low social status purely on the
basis of the accident of birth in particular caste. With all modern industrial
and technological advancement which has made vocationalcastes redundant,
the caste system is so deep rooted, that even today you find even the educated
persons advertising in matrimonial columns for suitable boys or girls on caste
basis.
Conclusion:

Caste system in India is so rigidly deep-rooted in its socio-cultural and religious

life that it now almost has God-given approval behind it. And anything against or
in opposition of this system is considered to be a sin or disrespectful to God.

But in reality it is no God-send virtue to be followed by the people. It has had

several exploitative and discriminatory effects on our social order throughout the
ages. As a by-product, caste system has given several other social ills to the
society such as Untouchability.

The system is still continuing in India as a well-established and sacred customary

rule and is followed by almost everyone regardless of their economic or social
status. Though the younger generation is discarding such social norms but still
the system is well-entrenched in our socio-religious beliefs. India cannot become a
truly modern country in the 21st century, if it fails to abolish this discriminatory
practice based on caste.

Q.2 discuss ,'Roscoe pound's Theory of Social Engineering'.

Ans :
Introduction-

The relation between the individual, society and the State have been changing
and various theories regarding them have been propounded from time to time. In
the beginning, society was governed by customs which had only social sanction.
Then came the supremacy of the priests. After that, the secular state emerged and
dominated all the institutions. As a reaction, the importance of individual was
asserted by thinkers and philosophers. There were revolutions and political
changes. The necessity of balancing the welfare of the society and individual was
realized.
Society and human life always go together. From childhood to till old age,
every human being expects that his or her desire is to be fulfilled for which their
arise conflict of desires or claims which comes under the term “interest”. It is
impossible to fulfill all the desires of a human being. So to fulfill the desires of
maximum human being for the welfare of society the concept of Social
Engineering was emerged and which was coined by Roscoe Pound. Social
engineering is based on the theory that laws are created to shape the society and
regulate the people’s behavior. It is an attempt to control the human conduct
through the help of Law. Dean Roscoe Pound (1970-1964) is ever associated
with American movement in sociological (functional) jurisprudence.He looked
at law as a pragmatist from the point of view of its ends, consequences, fruits
and effects on society. He looked upon law as a social institution which may be
consciously perfected as a device of special control to be utilised for special
good.

According to Pound, “Law is social engineering which means a balance

between the competing interests in society,” in which applied science are used for
resolving individual and social problems.

For the purpose of maintaining the legal framework and its proper functioning,
certain interest needs to be considered like individual interests, public and social
interests, a definition of limits within which such interests will be recognized and
given effect to, and the securing of those interest within the limits as defined.

When determining the scope and subject matter of the system, the following
things have to be done:

Preparation of an inventory of interests, classifying them,

Selection of the interests which should be legally recognized,

Demarcation of the limits of securing the interests so selected,

Consideration of the means whereby laws might secure the interests when those
have been acknowledged and delimited, and

Evolution of the principles of valuation of interests.

** Theory of Social Engineering:

Pound compared the task of the lawyer to the engineers. He stated that the aim
of social engineering is to build a structure of society as possible which requires
the fulfillment or satisfaction of maximum wants with minimum usage of
resources. It involves the balancing of competing interests. He called this theory
as the theory of “Social Engineering.” It involves the balancing of competing
interests. It is the task of jurists to assist the court by classifying and expatiating
on the interests protected by law. He lays down the method which a jurist
should follow for social engineering: He should study the actual social effects of
legal institutions and legal doctrines, study the means of making rules effective,
undertake Sociological study in preparation of law making, study the judicial
method, a sociological legal history and the importance of reasonable and just
solution of individual cases.

Here Pound has used two words i.e. “Social” which means group of individual
forming a society. The second word is “Engineering” which means applied
science carried out by engineers to produce finished products, based on
continuous experimentation and experience to get the finished product by means
of an instrument or device. The task of social ordering presupposes a sincere
effort to avoid or at least to ameliorate, collisions resulting from conflicts of
interests. All the varied activities of legal order or the efforts of the court,
administrators, legislatures, jurists are to be directed towards the adjustment of
relations. Compromise of conflicting claims calls for the securing of interests by
determining boundaries wherein each may be asserted with a minimum of
friction and the finding of means whereby greater number of claims may be
satisfied with a sacrifice of fewer.

** Varioues Techniques of Social Engineering:

(a) Study of actual Social effects of legal institutions and legal doctrines.
(b) Study of means of making the legal rules effective.
(c) Sociological study of law making.
(d) Study of judicial method.
(e) A sociological history.
(f) The importance of reasonable and just solution of individual cases.
(g) A ministry of justice to make more effective efforts towards the purpose
of the order.
All the above facts should be taken into consideration by Jurists to make law
purposive, need based and goal oriented.Law, therefore, as a science of social
engineering is more concerned with actual operation of law rather than its
abstract content. Just as engineers minimise friction and waste when dealing
with machines, similarly jurists ought to enable to resolve conflicts in society in
the interest of harmony, reform and progress. This methodology is described by
Pound as social engineering.
**Pound classified various interests to be protected by law in three heads:

1. Private Interests / Individual Interest–

Individual interests, according to Pound are claims, or demands or desires from
the point of the individual. Individual interests according to Pound includes:
a. Personality-

The physical person,

Freedom of will,

Honour and reputation,

Privacy and sensibilities,

Belief and opinion.

b. Domestic relations –

it is important to distinguish between the interest of individuals in domestic

relationships and that of society in such institutions as family and marriage.
Individual interests include those of :

Parents and Children,

Husbands and Wives &

Marital interests.

c. Interest of substance- this includes

Interests of property,

Succession and testamentary disposition,

Freedom of industry and contract,

Promised advantages

Advantageous relations with others,

Freedom of association, and

Continuity of employment
2-Public Interest–

Public interests according to him are the claims or demands or desires looked at
from the stand point life in politically organized society. The main public interest
according to Roscoe pound are :

a. Interests of state as a juristic person which includes

Interests of state as a juristic person i.e. protection

Claims of the politically organized society as a corporation to property acquired

and held for corporate purposes.

b. Interests of State as a guardian of social interest,

Namely superintendence and administration of trusts, charitable endowments,

protection of natural environment, territorial waters, sea-shores, regulation of
public employment and so on to make use of thing which are open to public use ,
this interest seem to overlap with social interests.

3-Social Interest :

Social interests are the claim or demands or desires thought of in terms of social
life and generalized as claims of social groups. Social interests are said to include :

A- Social interest in general security –

Social interest in the general security embraces those branches of the law which
relate to

General safety,

General health,

Peace and order,

Security of acquisitions and

Security of transactions.

B-Social interest in the security of social institutions-

Social interest in the security of the social institutions include

General security of domestic institutions,

Religious institutions, political institution and

Economic institutions.

C-Social interest in general morals –

Social interest in general morals comprises of prevention and prohibition of

prostitution, drunkenness, gambling, etc.

D-Social interest in conservation of social resources-

Social interests in the conservation of social resources covers conservation of

social resources and protection and training of dependents and defectives, i.e. ,
conservation of human resources, protective and education of dependents and
defectives, reformation of delinquents, protection of economically dependents.

E-Social interest in general progress –

Social interest in general progress has three aspects. Economic progress, political
progress and cultural progress.

1.Political progress covers free speech and free association, free opinion, free
criticisms.
2.Economic progress covers freedom of use and sale of properly , free, trade , free
industry and encouragement of inventions by the grant of patents.
3.Cultural progress covers free science, free letters, encouragements of arts and
letters, encouragements of higher education an learning and aesthetics
f. Social interest in individual life.- Meaning thereby each individual be able to
live a human life according to the individual’s

1.Political life
2.Physical life
3.Cultural
4.Social and
5.Economic life.

Jural Postulates Of Roscoe Pound of social Engeenring-

In order to evaluate the conflicting interests in due order of priority, pound
suggested that every society has certain basic assumption upon which its ordering
rests, through for most of the time they may be implicit rather than expressly
formulated. This assumption may be called as jural postulates of the legal system
of that society. Social engineering is not a mechanical exercise for adjusting
individual and social interest but is a voluntary valuation, assessment of
different new claims and interests which require recognition and satisfaction as
they are considered and just within the framework of Time and Space of a given
society.

The discovery and identification of such new claims and interests to suit the
needs and times of a society for the resolution of conflicts with least injury
requires the jurists to evolve rational and moral principles of human conduct-
what Pound calls the jural postulates of the civilization of time and place
which is the basis for giving effect to such interests. They are rationalisation
of these claims or an explanation thereto which are selected within the given
Time-Space frame work of a society by the jurists for satisfying social or
individual claims. Stone calls it a working hypothesis which, by observation
of phenomena guide jurists, on which of the claims and demands should be
given effect over other interest within a society. They are not what law is but
what the men in a given society want law to do. They are for law and not
postulates of law. They are maintained until new facts show that they are no
longer applicable.

Pound has mentioned five jural postulates as follows-

1.Jural postulate I– in civilised society men must be able to assume that others
will commit no intentional aggression upon them.
2.Jural postulate II– in civilised society men must be able to assume that they
may control for beneficial purposes what they have discovered and appropriated
to their own use, what they have created by their own labour and what they have
created by their own labour and what they have acquired under the existing
social and economic order.
3.Jural postulate III – In a civilized society men must be able to assume that those
with whom they deal as a member of the society will act in good faith and hence-
Will make good reasonable expectations which their promises or other conduct
reasonably create;
Will carry out their undertaking according to the expectations which the moral
sentiment of the community attaches thereto.
Will restore specifically or by equivalent what comes to them by mistake, or
failure of the pre-suppositions of a transaction, or other unanticipated situation
whereby they receive at other’s expense what they could not reasonably have
expected to receive under the actual circumstances.
4.Jural postulate IV– in civilized society men must be able to assume that those
who engage in some course of conduct will act with due care not to cast an
unreasonable risk of injury upon others.
5.Jural postulate V-in a civilized society men must be able to assume that others
who maintain things or employ agencies, harmless in the sphere of their use but
harmful in their normal action elsewhere, and having a natural tendency to cross
the boundaries of their proper use will restrain them and keep them within their
proper bounds.
Pounds confessed that these jural postulates are not absolute but they have
relative value. These are ideal standards which law should pursue in society
they are of a changing nature and new postulates may emerge if the changes in
society so warrant. Thus the jural postulates by Roscoe pound provide guidelines
for civilized life and they also seek to strike a balance between reality and
idealism as also power and social accountability of men in the community.

Theory of Iustice - Pound is more interested in satisfaction of social need and

promotion of social justice than assertion of legal rights. Law therefore should
not be studied in relation to abstract concept but as an instrument of social
justice. He recognised the right of a section of society for greater social
stability, economic security and general welfare etc. The various laws
concerning minimum wages Act, old age pension, social insurance, social
security and guarantee of decent living etc. are measures to for attaining the
goals and ends of society.

Pound's Contribution:
Pound gives a theory free from dogmas, and points out the responsibilities of
the judge and the lawyer. He takes a middle way avoiding any exaggerations.
His approach is experimental. His theory stands on a practical and firm ground
and it has inspired great practical field work.He points out the responsibility of
the lawyer, the judge and the jurists and gives a comprehensive picture of the
scope and field of the subject.J ud i ci a l D e ci s i o ns - I nd i a n A p pr o a ch

S o c i ol og i c al J u r i sp r ud e n ce - J ud i ci a l R e sp o n se
The Constitution of India assigns a superior place to 'public purpose' public
moral' and 'public interest'.As could be expected, the constitutional validity of
both the amendments was challenged in the Supreme Court through an Art. 32
writpetition in case Keshvananda Bharti V/s State Of Kerala (AIR- 1973) By
Swami Keshvananda Bharati, a mutt chief of Kerala. The matter was heard by a
bench consisting of all the 13 Judges of the Court. Wide ranging arguments
were advanced before the court for over 60 days both for and against the
validity of the amendments and eleven opinions were delivered by the Judges
on April 24, 1973. The Court now held that the power to amend the constitution
was to be found in Art, 368 itself. It was emphasized that the Provisions relating
to the amendment of the Constitution are some of the most important features
of any modern constitution. Hegde and Mukherjee, JJ. Found it difficult to
believe that the constitution - makers had left the important power to amend
the Constitution hidden in parliaments residuary power.
On this point, therefore the views expressed in the Shankar Prasad and Sajjan
Singh case were endorsed, and the view expressed in the Golak Nath case that
the power to amend the constitution was not to be found in Art. 368 were
overruled. Further, the Court recognised that there was a distinction between
an ordinary law and a Constitutional law. As Hegde and Mukherjee.JJ, state -
"An examination of the various provisions of our constitution shows that it has
made a distinction between the Constitution and the laws". It was stated that
the constitution makers did not use the expression law in Art. 13 as including
'Constitutional Law'. This would thus mean that art. 368 confer power to even
abridge a fundamental rights. To this extent, therefore, the Golak Nath case was
now overruled.
Thus Keshvananda is the anthology of Indian Jurisprudence which has
removed legal tensions, apprehensions and obstacles in the establishment of a
democratic, Socialist society and empowered the Parliament with almost
unlimited authority for instituting or restructuring schemes of social change
and reforms in the interest of common - goals. With it ends the period of
ORTHODOXY jurisprudence in India and begins the era of developmental
jurisprudence with a new purposive social and legal morality.
Application of Theory to Indian Situation Indian legal system before
independence :-pli Indian legal system before 1947 was static and
counterproductive to social change and social justice. It was anti-people,
suppressive of human dignity and non - responsive to egalitarian goals of the
Indian people.
Indian Ground norm:
In control of jurisprudence before 1947 was the British crown. The Courts
were a sham and mockery in which police, witnesses lawyers and judges all
played their part in producing or using evidence which they knew to be quite
false. Litigation had become a national pastime and the criminal law a
recognised and well-tried means of harassing, imprisoning and even having
one's enemies executed. Indian magistrates daily spent hours in their courts,
solemnly recording word for word the evidence of illiterate peasants, knowing
full well that 90 % (ninety percent) of it was false.
Thus under the British rule human rights and democracy were suspect and
socialism was anathema for the progress of administrative and judicial justice.
Austinian positivism created a permanent wall between people and their, law,
between law makers, the masters and the ruled subjects who agitated, clamoring
both for bread and freedom.
Sociological Overtones - New Jurisprudence:
The new Indian Constitution enacted and adopted in 1950 contributed in
ushering a new legal and constitutional philosophy embodying ideals of
liberty, equality and human dignity. The preamble of the Constitution together
with Fundamental rights in the constitution constitute the Magna Carta of
individual liberty and human rights and there are also the Directive Principles
and it is paramount that courts ought to synthesis these twin goals in a spirit of
mutual accommodation and coexistence to achieve the social ends free from
coercion and exploiting. They are both necessary for founding an egalitarian
society in India. Granville Austin remarks: "The Indian Constitution is first and
foremost a social document. Part III and IV are the Conscience of the
Constitution." Justice Mr. S.R. Das observed: "Our Constitution has not ignored
the individual but has endeavoured to harmonies the individual interest with
the paramount interest of community.
Social Engineering:
In the sphere of family Law, labour law, commercial law, social Law
prohibiting discrimination on the grounds of sex, religion or region the
Indian Judges resorted to social Engineering device to realise social harmony
and class reconciliation. Mr. Justice Krishna Iyer, the main architect of Indian
Jurisprudence, said, "It is functional fulfillments as sod al engineering
depends on its sensitised response to situation, subject matter and the
complex realities which require ordered control. "He says therefore that
Judges must never forget that every law has a social purpose and engineering
process without appreciating which justice to law cannot be done.
Today the supreme court of India is more pragmatic, helpful and alive to the
problems of poor than ever before.

CONCLUSION :-

It is concluded that law plays an important role in adjusting conflict of interests.

Both the social interest and individual interest co-exist. Both of them have equal
priority. Roscoe Pound has given the idea of Social Engineering for the American
Society but this concept is followed universally for dispute resolution. India also
followed the same concept in establishing a societal welfare. Both Judiciary and
Legislators play an important role in enacting the statutes which fulfill the various
desires of human being. In this techsavvy society desires of human being grows
and to fulfill their desires new policies, strategy has been developed.

According to Pound, sociological jurisprudence should ensure that the making,

interpretation and application of laws take account of social facts. Pound linked
the task of the lawyer to engineering. The aim of social engineering is to build a
scientific structure of society as possible, which requires the satisfaction of the
maximum of wants and with the minimum of friction and waste. It is the task of
the jurist to assist the country by identifying and classifying the interests to be
protected by law.
Q.3) Discuss, ‘religion as a divisive factor'.

Ans-

Introduction:

Religion is a social phenomenon, distinctive and each has its own centre of
populationThe term 'Religion' has not been defined in the constitution, but
the Supreme Court has given it an expensive content. The guarantee under Art.
25, subject to the exceptions mentioned, confers a fundamental right on every
person not merely to entertain such religious beliefs as are allowed to him by
his judgment or conscience, but also to exhibit his belief and ideas in such overt
or outward acts and practices as are sanctioned or enjoined by his religion, and
further to propagate and disseminate his religious briefs, ideal and views for
the benefit edification of others.

The character and right of religious observance depends upon the membership of
particular social group. Religious issues often become spots of social anxiety
because of competing religious sentiments. Transformations within the religion
occur in the course of social development due to reformative movements,
emergence of alternative faiths, rise of new leadership, impact of other cultures
and efforts of modernisation.
A principled distancing from religions and an approach of impartiality in
treatment provide a safe walk, soberness and legitimacy for state action. Being a
component of the policy of multiculturalism, this approach sets ways and limits
to law’s regulative task, and inculcates an attitude and mindset for co-existence
amidst different religious communities.

Religion is a matter of faith. A religion undoubtedly, has its basis in a

system, of beliefs and doctrines which are regarded by these who profess that
religion as conductive to their spiritual well - being, but it is also something
religion and culture of minority groups in India more than merely doctrine of
belief. A religion may not only lay down a code of ethical rules for its followers
to accept, but may also prescribe rituals and observances, ceremonies and
modes of worship which are regarded as an integral post of that religion. These
forms and observances might extend even to matters of food and dress.
Therefore, the constitutional guarantee regarding freedom of religion
contained in Art. 25 (1) extends even to rites and ceremonies associated with a
religion.
 In case Gulam Abbas v/s State of Uttar Pradesh :- a writ petition under art.
32, the Supreme Court enforced the custom any religious rights of the Shia
community on a piece of land. The court said that the state could not interfere
with established customary rights to perform their religious ceremonies and
functions. A wide range of minority rights are covered by the provisions relating
to fundamental rights Art. 14, 15, 16, 25, 26, 29 (2) seek to protect them from
hostile and discriminatory state. Morality comes from within the man's soul,
while law imposes upon a man from without. Morality is the medicine of the
sour; and legislation which is the practical part of it, ought to have for its
foundation the axioms of Mental pathology.

**Effects of Religion as a divisive factor:

Generally in all religious system, there is secret supernatural power is

attributed a disposition to maintain the laws of society and to punish or to
reward at future time, such acts as may have escaped punishment or may have
failed rewarded among men.
Incidently of Religion and the Laws, we always have some natural
motives - derived from our own interest for consulting the happiness of others.
(i) The motive of pure benevolence,
(ii) The motives of private affection,
(iii) The decsive of good repute and
(iv) The fear of blame.

The fact still remains that in many cases morality derives its existence from the law
because it is necessary to know whether the laws, permit or forbid it. The state
exists only by law. There are countries where it is an offence to enlist into the
service of foreign power and others in which such a service is lawful and
honorable. According to Bentham, we ought to examine if it is more dangerous to
violate the law than to obey it, we ought to consider whether the probable evils of
obedience are less or greater than the probable evils of disobedience.
Basically religion is for spiritual guidance of the people and hence can be a major
resource for peace and social justice. It can become, as liberation theology
indicates, a powerful option for the weaker sections of society. Instead religion
has more often been used by powerful vested interests of which religious
functionaries become apart. Worse, religious functionaries and priests themselves
create powerful establishments and join hands with politicians to protect their
establishments.

The general behaviour depends on various interests of the

community. As per influencial theory Law regulates external relations while
morality governs in the inner life and motivation. The moral command
appeals to our character and conscience while law applies the threat of
physical compulsion. It is novelty and especially religion which form the
necessary complement to legislation and the sweetest tie of humanity.
However, the legislators have not done enough. They should include into an
offence the refusal or the omission of a service of humanity e.g. (i)
abandoning an injurious person in a solitary road without seeking any
assistance for him, (iii) not giving a helping hand to one who has fallen into a
ditch, from which he cannot extricate himself. (iii) not giving information to
a man who is ignorantly meddling with poisons.
There are the evils which can be prevented and so if any fault is found a
punishment needs to be proposed exposing the deliquent to a certain degree of
shame or subjecting him to a pecuniary responsibility.
Thus the values especially the socio-ethical principles and the
resources set in the society limits in a strict sense the legislative or legal action
of the legislators. There are no other limits to effective legal action. The cow
slaughter issue raised by late Vinoba Bhave, the Sarvodaya Leader has not
effected the legal action much. The professional ethics laid down by the
lawyer and other councils of professionals are theoretically exist still in the
community as they are set by our values and resources. Still it is not correct to
say that what is accepted theoretically is observed in the code of conduct but
no punishment is provided for its infringemence which is severe and it is just
to supplement our inner law the professional, ethics fails in its object. After all
it is morality which needs to in every individual, mind and every evil cannot
be remedied by the punishment provided by the law.

**Religious Fanaticism (Religious fanatics)-

India is a country of Religions. I.e. having multifarious religious groups in the
country. There is no state recognised church or religion. The religion of citizen is
irrelevant in the matter of his fundamental rights. Secularism in India is based on
the rich heritage and culture steeped in its various religions. The secular fabric of
the country is very well reflected in the phrase ‘Vasudhaiv Kutumbakam’ which
means that the whole world is one family. India has always been an inclusive
society, which has welcomed people of all religions and faiths with open arms,
never discriminating among religions and never considering any religion or faith
to be a threat. But this secular fabric has not meant that there is no communalism
in India.
In spite of a number of laws treating people of all religions as par, India has had a
long history of communal riots, the worst of them being at the time of partition of
the country when blood flowed as rivers. In a land where tolerance is byword for
life, when did this hatred for fellow beings arise? The answer to this question lies
in the British rule of the country, particularly post-1857. Prior to 1857, the British
rulers restrained themselves from interfering in the social structure of the country.
Post-1857, they realized the importance of dividing the people of the country in
order to weaken them. This gave rise to the ‘divide and rule’ policy, which they
used, on religious lines thus distancing Hindus and Muslims.
The persistence of this policy of the British is reflected in the painful partition of
the country and the displacement of a large number of people from their hearths
and homes. This has continued even after the independence of the country in
spite of the government being neutral as far as religion is concerned and the
constitution ensuring that there is no discrimination on the basis of religion as far
as employment, education etc. are concerned. This is 12 apparently on account of
minimal social interaction between various religious communities leading to a
distorted view of other communities and its practitioners. Such a social
interaction is especially important to heal the scars and pain of the partition. The
delicate secular fabric could not withstand the body blow of the partition. This
situation was sought to be remedied through the provisions of the constitution.
The pain of the partition revisited the country in the form of communal violence
riots from time to time, as if not to let people forget their wounds. The action or
inaction of the political leaders and the administrative system at times also added
to the communal frenzy. Some major events which changed the way world
viewed India were based on communal frenzy viz. Babri Masjid demolition, the
Gujarat riots, Delhi (Sikh) riots.
Babri Masjid located at Ayodhya in Uttar Pradesh was demolished on December
6, 1992 by kar sevaks under the guidance of some of our leaders who are facing
trial in the case. The demolition of the Babri Masjid made the fabled respect for all
religions that Indians have a thing of the past. The fact, that a religious shrine of
any religion could be demolished, raises questions about the secularity of the
people of the country as also the conviction of the state towards secularism.
The Gujarat violence in 2002 is a matter of great shame for the country. The fact,
that people were massacred only on account of their belonging to a particular
religion, is unacceptable in any secular nation. The fact, that the administration
reacted late, also raises questions regarding the State’s belief in secularism. A
similar incident, which happened about two decades prior to the Gujarat
violence, was the riots of Delhi in 1984. Sikhs were brutally slaughtered on the
streets of Delhi just because the person who assassinated the then Prime Minister
of India, Smt. Indira Gandhi happened to be a Sikh. It is ironic that this killing
happened to exact revenge for the death of the person who was instrumental in
incorporating the word ‘secular’ in the Indian constitution.
Needless to say it is totally unfair comparison. In fact one cannot take values of
one religion and compare it with history of other. Values must be compared with
values and history must be compared with history. While values are divine,
humanitarian and common to all religions, history is full of violence perpetrated
by various vested interests, power struggle within or two or more faith
communities and often represents worst side of human behaviour. It should not
be blamed on religion.

**Secularism as a solution to the problem-

Secularism is one of the important national goals. Though secularism has been an
official Government policy, bulk of people in India still remain non secular.
Communalism and Terrorism are big threat to secularism.
Secularism as a means of liberation from prejudices and communal frenzies has
inherent competence to enhance the worth of human rights and welfare. Search
for viable parameters for the appropriate triangular relations 15 among state,
religion, and individual become an imperative in shaping the legal policies in the
task of social transformation. Hence it was felt that India be declared as secular
State.
The English word “secular is derived from the Latin word SAECULUM”. Earlier
in Monarchical countries secularists were described as republicans. The French
Revolution of 1789 popularized the idea of secularism. The French constitution of
1791 introduced the idea of secular state. Great Indians like, the mughal king
Akbar, social and religious reformers like Raja Ram Mohan Roy and Swami
Vivekananda respected the people of all religions. Particularly Indian king
Maharaja Ranjith Singh officially announced secularism as the policy of his
Government. He was successful in this regard. Ranjith Singh is considered as a
forerunner in implementing the idea of Secularism through Government means.
In the year 1888 the Indian National Congress opened a debate on secularism and
proposed secular nationalism for India. The idea of secularism began in Indian
politics in 1920 when Mahathma Gandhi organised Khilafat movement in support
of the Sultan of Turkey.
The Sanskrit phrase ‘Sarva Dharma Sambhava’ is the most appropriate Indian
vision of secular state and society. But it should not be forgotten that the word
‘Secular’ has not been defined or explained under the constitution either in 1950
or in 1976 when it was made part of the preamble.
Secularism as a modern political and constitutional principle involves two basic
propositions. The first is that people belonging to different faiths and sects are
equal before the law, the constitution and the government policy. The second
requirement is that there can be no mixing up of religion and politics. It follows
that there can be no discrimination against any one on the basis of religion or faith
nor is there room for the hegemony of one religion or religion of majority
sentiments and aspirations. It is in this double sense – no discrimination against
any one on grounds of faith and separation of religion from politics – that our
constitution safeguards secularism.
** Reform the law on secular lines: Problems
The constituent assembly which was constituted to frame a constitution for India
declared eight guiding principles of Indian constitution. Among these eight basic
and guiding principles of the constitution–Secularism is placed in fifth position.
To that extent the constitutional pandits gave importance for secularism. The idea
of secularism is essential to maintain unity in diversity. Secularism is a basic
ideology for the effective functioning of a healthy Democracy. When the Indian
constitution was adopted in January 1950, it has got sufficient provisions to
promote secularism.
The Constitution of India firmly believes in the principle of secularism. The
founding fathers of the Indian Constitution never hesitated to build India on
secular foundations. They opposed and defeated the amendment of Mr. H. V.
Kamath to invoke the name of god in the preamble of the Constitution. Pandit
Kunjru said that we invoke the name of God, but I am bold to say that while we
do so, we are showing a narrow, sectarian spirit, which is contrary to the spirit of
the Constitution. The Indian Flag consists of Ashoka Chakra in its center. The
wheel has many spokes but, all are of equal length. It indirectly refers to the
Indian stand on the principle of equal treatment of all religions. (Sarva Dharma
Sambava ).
Although, the word ‘Secular’ was not there initially in the constitution, a mere
perusal of the various articles of it would amply demonstrate that ‘Secularism’ is
an integral part of the Indian constitution. At this juncture, it would not be
inappropriate to have a glance at the relevant constitutional provisions pertaining
to secularism. Article 14 of the constitution provides for equality before law for all
people. Article 15, inter alia, lays down that the state shall not discriminate any
citizen on the ground of religion. Article 16 provides for equality of opportunity
in matters of employment under the state, 17 irrespective of religion. Article 25
provides for freedom of conscience and the right to profess practice and
propagate the religion of one’s choice.
The constitution not only guarantees a person’s freedom of religion and
conscience, but also ensures freedom for one who has no religion, and it
scrupulously restrains the state from making any discrimination on grounds of
religion. Article 26 provides freedom to manage religious affairs and Article 27
prohibits compulsion to pay taxes to benefit any religious denomination. The
impact of Secularism can also be seen in Article 28, which states that no religious
instruction shall be provided in any educational institution wholly maintained
out of state funds. The analysis of the above said constitutional provisions makes
it amply clear that Indian secularism is unique and it treats all religions alike. In
our country, judiciary is the guardian of the constitution and it has been held by
the Supreme Court that secularism is a basic structure of the constitution and it
cannot be altered by a constitutional amendment.

Accordingly Article 25 protects two freedoms:

(a) freedom of conscience,
(b)freedom to profess, practice and propagate religion.
The freedom of conscience is absolute inner freedom of the citizen to mould his
own relation with God in whatever manner he likes. When this freedom becomes
articulate and expressed in outward form it is to profess and practice religion. To
profess religion means to declare freely and openly one's faith and belief. To
practice religion is to perform the prescribed religious duties, rites and rules. To
propagate means to spread and practice his view for enlightening others. The
right to propagate one's religion is not a right to convert other to one's own
religion.
Article therefore postulates that there is no fundamental right to convert another
person to one’s own religion, ‘because if a person purposefully undertakes the
conversion of another person to his religion as distinguished from his effort to
transmit or spread the tenets of his religion that would impugn on the freedom of
conscience guaranteed to all citizens of the country alike’; as decided in Rev.
Stainialaus v. St. of Madhya Pradesh (AIR 1977 SC 908)
The Supreme Court in Punjab Rao v. D. P. Meshram, (AIR 1966 SC 1179)
expresses that, the right is not only to entertain such religious belief as may be
approved by his judgment or conscience but also to exhibit his sentiments in overt
acts as are enjoyed by religion. In the words of the Article, he may “profess a
religion means the right to declare freely and openly one's faith.” And in Ratilal
Panachand Gandhi v. State of Bombay, (AIR 1954 SC 388) declares that he may
freely practice his religion; “Religious practices or performance of acts in
pursuance of religious belief are as much a part of religion as faith or belief in
particular doctrines”.
Rituals and observances, ceremonies and modes of worship considered by a
religion to be its integrals and essentials part are also secured. What is integral
and essential part of a religion or religious practice has to be decided by the
Courts with references to the doctrine of a particular religion include practice
regarded by the community as part of its religion as put forth by the honourable
Supreme Court in Seshammal v. state of Tamil Nadu, (1972) 2 SCC. Again in
Ratilal, the SC states that, he may propagate freely his religious views for the
edification of others. It is immaterial also whether a person makes the
propagation in his individual capacity or on behalf of some church institution.
If one makes an attempt to look at the secular aura in our Constitution, the only
point to reach is Article 25, which refers “Right to freedom of religion”. It reads
thus– “Freedom of conscience and free profession, practice and propagation of
religion – (1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience
and the right to freely profess, practice and propagate religion”.
In Bijoe Emmanuel v. State of Kerala (AIR 1987 SC 748) also known as National
Anthem case, the Supreme Court has upheld the religious belief of the Jehovahs
witness, a Christian community not to praise anybody but for his or her own
embodiment of God. In this case the children of Jehovahs witness were expelled
from the school for refusing to sing the National Anthem. The Supreme Court
held their religious practice was protected under Article 25. Chinnappa Reddy, J.,
observed “that the question is not whether a particular religious belief or practice
appeals to our reason of sentiment but whether the belief is genuinely and
conscientiously held as part of the profession or practice of religion. Our personal
views and reactions are irrelevant. If the belief is genuinely and conscientiously
held it attracts the protection of Article 25 but subject, of course, to the limitations
contained therein”.
The Indian constitution provides for the individual as well as collective freedom
of religion. The basic guarantee of this right of individual freedom is in Art. 25 (1).
This freedom extends to all persons including aliens underlined by Supreme
Court in Ratilal Panchand vs. State of Bombay. The Indian Constitution makes
freedom of conscience as well as right to freely profess, practice and propagate
religion subject to state control in the interest of public order, morality and health.
But Supreme Court has made it clear that state can have no power over the
conscience of individual – this right is absolute. The Indian Penal Code (sections
295-8) makes it a crime to injure or defile a place of worship or to disturb a
religious assembly etc. even though these actions might be sanctioned by
offender’s own religion. Practices like devadasi, sati may have religious sanctions
but the state still has constitutional power to ban them. Art. 25(2) grants to the
state broad, sweeping powers to interfere in religious matters. This reflects
peculiar needs of the Indian society. The extensive modification of Hindu
personal law has been by legislation based on this provision. Art. 25(2) thus
authorize the state to regulate any secular activity associated with religion, to
legislate social reforms.
Article 25 gives freedom for all to practice any religion they want. This is a basic
right guaranteed in the Constitution. Article 26 (Freedom to manage religious
affairs), Article 27 (Freedom as to payment of taxes for promotion of any
particular religion) and Article 28 (Freedom as to attendance at religious
instruction or religious worship in certain educational institutions) can be
considered as the interpretations of the principle of secularism in the constitution.
Art. 26 deals with the freedom to manage religious affairs. Accordingly any
religious denomination is given right to establish religious institutions, acquire
properties (movable and immovable) and manage affairs regarding the religion.
Art. 27 is also very important which reads – “Freedom as to payment of taxes for
promotion of any particular religion. – No person shall be compelled to pay any
taxes, the proceeds of which are specifically appropriated in payment of expenses
for the promotion or maintenance of any particular religion or religious
denomination.”
**Varioues Restrictions on the freedom of religion-

1- Restrictions to the enjoyment of Right to Religion:

The right to religion guaranteed under Article 25 is not an absolute right,
like other rights this right too can be restricted for the purpose of
maintaining public order, morality and health. In addition Article 25
further exceptions are engrafted by clause (2) of the Article. Sub-clause (a)
of clause (2) saves the power of State to make laws regulating or restricting
any economic, financial, political or secular activity which may be
associated with religious practice and sub-clause (b) reserves the State's
power to make laws for providing for social welfare and social reform even
though they might interfere with religious practices.
In S.P. Mittal v Union of India, the Government enacted the Auroville
(Emergency Provision) Act, to take away the management of Aurobindo
Society property on the ground of mismanagement of affairs. The
petitioners challenged the validity of the said Act on the ground that it
violates Articles 25 and 26 of the Constitution. The Court held that
teachings of Aurobindo did not constitute 'religion' and therefore taking of
Aurobindo Ashram did not infringe the Society's right under Articles 25
and 26. It further held, even if it was assumed that the Society were a
religious denomination, the Act did not infringe its rights under Articles 25
and 26. The Act has taken only the right of management of property of
Auroville, in respect of secular matters, which can be regulated by law.
Also, in Mohd. Hanif Quareshi v State of Bihar, the petitioner claimed
that the sacrifices of cows on the occasion of Bakr-Id was essential part of
his religion and therefore the State law forbidding the slaughter of cows
was violative of his right to practice religion. Court rejecting the argument
held that sacrifice of cow on Bakr-Id day was not essential part of the
Mohamedan religion and hence could be prohibited by State under Clause
2(a) of Article 25.
In a another case State of West Bengal v Ashutosh Lahiri, the Supreme
Court held that slaughter of cows on Bakrid day is optional and not
obligatory. It is not essential or required for religious purpose of Muslim.
Article 25 deals with essential religious practices.
2- State Acting towards Social Welfare and Social Reforms:
Under clause (2)(b) of Article 25, the State is empowered to make laws for
social welfare and social reforms. Under this the State can eradicate those
evil practices, which are under the guise and name of the religion.
Example, the devadasi system, the Sati system etc.
The State can throw open Hindu religious institutions of public character
to all Hindus. Article 25(2)(b) enables the State to take steps to remove the
untouchability from amongst Hindus. But this does not mean the right is
absolute and be unlimited. The Supreme Court in Shastri
Yagnapurushdasji v Muldas Bhundardas Vaishya makes it clear that the
State cannot regulate the manner in which the worship of the deity is
performed.
Whereas it justifies banning of polygamy amongs hindu in State of
Bombay v Narasu. What the Courts have tried to do is to separate
'religious' activities and 'social and secular' activities, the former are
protected under Article 25 the latter are not.
In Ismail Farooqi v Union of India, ((1994) 6 SCC 360) the Supreme Court
has tried to differentiate between "essential parts" of religious practice. It
has held that offer of prayer or worship is a religious practice; its offering
at every location where such prayers can be offered would not be essential
religious practice. What is protected under Articles 25 and 26 is a religious
practice, which forms an essential part of religious practice. Thus, a place
of worship may be acquired by the State in exercise of its supreme power.
Thus places of worship be it temples, mosques or churches can be
acquired.
Right to manage religious affairs
Article 26 says that: Subject to public order, morality and health, every
religious denomination of any section have the following rights:
(a) to establish and maintain institutions for religious and charitable
purposes;
(b)to manage its own affairs in the matters of religion;
(c) to own and acquire moveable and immoveable property;
(d)to administer such property in accordance with law.
The right guaranteed by Article 26 is the right of an ‘organized body or
entity’ like the religious denomination or any section thereof. The word
‘denomination’ can be understood as a collection of individuals, classed
together under the same name; generally religious sect or body having a
common faith and organization and designated by a distinctive value.
In S.P. Mittal the SC states that, the words ‘religious denomination’ in
Article 26 must take colour from the word ‘religion’ and therefore as
described in the case of Achaiya Jagdishwaranand Avadhuta v
Commissioner of Police, Calcutta it must also satisfy three conditions:
(1) It must be collection of individual who have a system of beliefs, which
they regard as conducive to their spiritual well being, that is common faith;
(2) It must have a common organization; and
(3) it must have distinctive name.
Thus in the large sense 'Hinduism' is a denomination and to some extend
various philosophies governing the Hindu Society, such as Advaitas,
Dwaitas, Visishtadwiatas and Shaivites can also be termed as
denomination. On this base the SC held that "Anand Marg" is a religious
denomination within the Hindu religion in Shastri Yagnapurushdasji v
Muldas Bhandardas Vaishya.
Clause (a) of Article 26 talks about right to establish and maintain
institutions for religious and charitable purpose — “Every religious
denomination has right to establish and maintain institutions for the
religious and charitable purposes”. The words “establish and maintain” in
Article 26(a) must be read together and therefore it is only those
institutions, which a religious denomination establishes, which it can claim
to maintain it. Thus in S. 24 Azeez Basha v. Union of India, the Supreme
Court held that the “Aligarh University was not established by the Muslim
minority and therefore it could not claim the right to maintain it”. It was
established under the Statute passed by the Parliament.
Clause (b) of Article 26 says about right to manage ‘matters of religion’-a
religious denomination or organization is free to manage its own affairs in
matters of religion. The State cannot interfere in the exercise of this right
unless they run counter to public order, health or morality. Accordingly
every religious denomination or organization enjoys complete freedom in
the matter of dealing what rites and ceremonies are essential according to
the tenet of the religion they hold.
The Court has the right to determine whether a particular rite or ceremony
is regarded as essential by the tenet of the particular religion. The “matters
of religion” means that secular activities connected with religious
institution can be regulated by State. The places of worship like temples,
mosques, Gurudwaras cannot be used for hiding criminals or carrying on
anti-national activities. They cannot be used for political purpose. The State
has power under Article 25(1) and clause (2) to prohibit their activities in
the places of worship.
In Athiest Society of India, Nalgonda District Branch v Government of
Andhra Pradesh, the petitioner, Atheist Society of India, prayed for issuing
a writ of mandamus directing the State Government to prohibit breaking of
coconuts for performing of Pooja, chanting of mantras or sutras of different
religions in religious functions organised by the State. The Andhra Pradesh
High Court rejected their prayer and held that these activities have been a
part of the Indian tradition and are meant to invoke the blessings of
almighty for the success of the project undertaken. Such noble thought
cannot be found fault with as offensive to anyone. May be that the
petitioner Society who claim to be atheist do not appreciate invocation of
Gods as they do not believe in God.
There is no constitutional guarantee to the faith of the atheist who
worships barren reason that there is no God. It is not the object of
Constitution to turn the country into irreligious place. A secular State does
not prohibit the practices of religion. If that is parented it will infringe the
rights of millions of Indians, which are guaranteed to them under Article
25 and will run directly contrary to the secular objectives of preamble to
the Constitution, which is one of the basic structures. It would deprive
them of their right of thought, expression, belief, faith and would amount
to abolition of Indian tradition and religious practices.
Clauses (c) and (d) of Article 26 says that right to administer property
owned by denomination. It is to be noted that the rights under clauses (c)
and (d) of Article 26 are confined to the existing rights to administer its
property by a religious denomination cannot be destroyed or taken away
completely. It can only be regulated by law with a view to improve the
administration of property. Thus the law must leave the right of
administration of property to the religious denomination itself subject to
such restrictions and regulations as it might choose to impose. Thus in
Ratilal’s case, a law which took away the right of administration altogether
from religious denomination and vested it in other secular authority was
held to be violative of right guaranteed by Article 26(d).
 However, if the right to administer property had never vested in the
denomination or had been validly surrendered by it or had otherwise been
lost, Article 26 will not create any such right in religious denomination.
Religious Minorities and law
3- Right to religion
The Universal Declaration of Human Rights: The Universal Declaration of
Human Rights, 1948 recognizes the right to religion in Art. 18 which say
that “Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief; and
freedom, either alone or in community with others in public or private, to
manifest his religion or belief in teaching, practice, worship and
observance”. That makes it clear that an individual who is ‘born free’ also
has freedom to manifest his religious beliefs as he is free to practice any
religion, he is also free to change his religion. Either he automatically
adopts the religion practiced by his parents after his birth or has freedom
to choose his own. It is his absolute choice to profess his religion in private
and if he wishes he may join any religious group.
Civil and Political Convention 1966:
In the Civil and Political Covenant, 1966, the right to religion is discussed
as follows: Article 18 ;
1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or adopt a religion or
belief of his choice, and freedom, either individually or in community with
others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.
2. No one shall be subject to coercion, which would impair his freedom to
have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of
others.
4. The State Parties to the present Covenant undertake to have respect for
the liberty of parents and, when applicable, legal guardian to ensure the
religious and moral education of their children in conformity with their
own convictions.
Declaration on religious Discrimination, 1981:
The Declaration on the Elimination of All forms of Intolerance and of
Discrimination Based on Religion or Belief adopted by General Assembly
of UN in 1982 states in Article 1,
1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have a religion or whatever
belief of his choice, freedom either individually or in community with
others and in public or private, to manifest his religion or belief in worship,
observance, practices and teaching.
2. No one shall be subject to coercion, which would impair his freedom to
have a religion or belief of his choice.
3. Freedom to manifest one's religion or belief may be subject only to such
limitations as are prescribed by law and are necessary to public safety,
order, health, or morals or the fundamental rights of freedoms of others.
Right not to be taxed to promote a religion:
Individual freedom of religion is further strengthened by Article 27
prohibiting religious taxation.
Article 27: No person shall be compelled to pay any taxes, the proceeds of
which are specifically appropriated in payment of expenses for the
promotion or maintenance of any particular religion or religious
denomination.
To maintain the “secular” character, the Constitution guarantees freedom
of religion to individuals and groups, but it is ‘against the general policy of
the Constitution that any money being paid out of public funds for
promoting or maintaining any particular religion’ as stated in
Commissioner HRE v. L.T. Swamiar. Therefore Article 27 lays down that
no person "shall be compelled to pay any taxes, the proceeds of which are
specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination."
The Supreme Court in various decisions has tried to differentiate between
tax and fee. Tax is in nature of compulsory exaction of money by public
authority for public purposes the payments of which are imposed by law.
Tax is imposed for public purposes to meet general expenses of State. Tax
is collected and merged with the general revenue of the State. Tax is a
common burden. Fees on the other hand is payments primarily in public
interest lent for some special work done for the benefit of those from whom
payments are demanded. Article 27 prohibits imposition of the tax and not
fee.
4- Cultural and Educational Rights
The constitution keeps the spirit of secularism by making a space to all the
religious protecting the interest of minorities respecting their right to
development. Art 29 and 30 guarantee certain cultural and educational
rights to cultural, religious and linguistic minorities.
Article 29.–
(1) Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have
the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only
of religion, race, caste, language or any of them.
Article 30.-
(1) All minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority, referred to in clause (1), the State shall ensure that the amount
fixed by or determined under such law for the acquisition of such property
is such as would not restrict or abrogate the right guaranteed under that
clause.
(2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it is
under the management of a minority, whether based on religion or
language.
Conclusion :-
The decision arrived at by the judges in the S.R. Bommai’s case and
Ismail Faruqui’s case reemphasized the concept of secularism being the
basic feature of the Constitution. The only issue relating to the basic
feature was whether secularism is a basic feature of the Constitution,
which was answered in the affirmative. It would be thus clear that
Constitution made clear demarcation between religious part personal to
the individual and secular part thereof. The State does not extend
patronage to any religion; State is neither pro-any particular religion
nor anti-any particular religion. It stands aloof, in other words, it
maintains neutrality in matters of religion and provides equal
protection to all religions subject to regulation and actively act on
secular part. Acquisition of certain land under Ayodhaya Act, 1993 was
held to be negation of law and therefore invalid and the court held that
the greatest religious tensions are not those between any one religion
and another; they rather are the tensions between the fundamentalist
and pluralist in each and every religious tradition. The intention of the
constitutional guarantee on minority rights, as we understand it is to
promote and to protect the distinctiveness of religious and linguistic
minorities in the country. 30 Secularism may be defined as the
“neutrality of the state in matters relating to religion or creed”. It may
also be understood as ‘non-patronizing’ attitude of the state to any one
religion. In a secular state, there is no state religion and every citizen is
free to preach, practice and propagate any religion. Thus, secularism
defines the way the people of a country carry on their individual affairs
as also their behavior towards others.
Q.4 What are the various types of crimes against women in India? Make a
critical , analysis of 'women empowerment in India'.

Ans- Introduction :
Women are the half of world’s population. Are human women have right to
live a dignified and secured life. They are strong enough but gets shattered
when their self esteem is hurt. The dignity for women is much precious then life
and this is universal phenomenon. Right to life includes right to human dignity.
Various Laws reinforce safeguards against discrimination and provide for
positive discrimination for women. Women ought to be protected and
responsible persons or institutions must observe certain guidelines to ensure
the prevention of sexual harassment of women so that lives with dignity as
guaranteed by our Constitution. In this unit you will be studying Various
Crimes against women, Gender injustice and its forms. Existence of Women’s
Commission its functions. How important is Empowerment of women and
Various Constitutional and other legal provisions for empowerment of women.
Crimes against women :-
Women her dignity and sexual harassment All over the world sexual purity of
women is attached to the ‘honour’ of the family and thus to attack the honour of
certain family the women of that family is sexually assaulted. ‘Dignity’ of the
women becomes fragile as women have been victims of humiliation, torture
and exploitation. In India, gender based violence is very common, perhaps it is
deeply rooted in the society. Almost every woman is victim of violence. There is
not even a single day when a crime against the woman, whether in the form of
eve-teasing or molestation or rape or immoral trafficking or sexual harassment
at the work place or domestic abuse, has not taken place, thereby putting a
woman’s right to live with dignity in anger at one point of time or the other.
The Supreme Court is the custodian of Fundamental rights and consequently
the dignity of women. In Maneka Gandhi V. ‘Union of India’, it was ruled that
right to live with human dignity. In Francis Coralie V. ‘Union of Territory of
Delhi’ it was held that means something more than just physical survival and is
not confined to protection of any faculty or limb through which life is enjoyed
or the soul communicates with the outside world, but includes ‘the right to live
with human dignity’.
What amounts to sexual harassment?
Sexual harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as:
(a) Physical contact and advances, or
(b)A demand or request for sexual favours, or
(c) Sexually coloured remarks, or
(d)Showing pornography,
(e) Any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.
Domestic Violence
The incidents of domestic violence are higher among the lower SocioEconomic
Classes (SECs). There are various instances of an inebriated husband beating up
the wife often leading to severe injuries. Domestic is 40 also seen in the form of
physical abuse. The Protection of Women from Domestic Violence Act.2005
came into force on October 26, 2006.
Trafficking
The Immoral Traffic (Prevention) Act was passed in 1956. However many cases
of trafficking of young girls and women have been reported. These women are
either forced into prostitution, domestic work or child labour.
Empowerment of Women:
Constitutional and other legal provisions. In ancient India, The women enjoyed
equal status with men in all fields of life. Women were educated in the early
Vedic period. Rigvedic verses suggest that the women married at a mature age
and were probably free to select their husband Scriptures such as Rigveda and
Upanishads mention several women sages and seers, notably Gargi and
Maitreyi. However, later (approximately 500 B.C.). The status of women began
to decline with the Smritis (esp. Manusmriti) and other religious texts curtailing
women’s freedom and rights.
Sati: Sati is an old, largely defunct custom, in which the widow was immolated
alive on her husband’s funeral pyre. Although the act was supposed to be a
voluntary on the widow’s part, it is believed to have been sometimes forced on
the widow. It was abolished by the British in 1829.There have been around
forty reported cases of Sati since independence in 1987, the Roop Kanwar case
of Rajasthan led to The Commission of Sati (Prevention) Act.
Child Marriages: Earlier, child marriages were highly prevalent in India. The
young girls would live with their parents till they reached puberty. In the past,
the child widows were condemned to a life of great agony, shaving heads,
living in isolation, and shunned by the society, although child marriage was
outlawed in 1860, it is still a common practice in some underdeveloped areas of
the country and ban on widow remarriages became part of social life in India.
Among the Rajputs of Rajasthan, the Jauhar was practiced. Jauhar refers to the
practice of the voluntary immolation of all the wivews and daughters of
defeated warriors, in order to avoid capture and consequent molestation by the
enemy. The practice was followed by the Rajputs of Rajasthan, who are known
to place a high premium on honour. In some parts of India, the Devadasis or the
temple women were sexually exploited. Devadasi is religious practice in some
parts of southern India, in which women are “married” to a deity or temple.
The ritual was well established by the 10th century A.D. in the later period, the
sexual exploitation of the devadasis became a norm in some parts of India.
**Crimes against women recognized by IPC, 1860
1-Section 209 IPC, deals with obscene acts and songs, whoever, to the
annoyance of others: (a)Does any obscene act in any public place or
(b)Sings recites or utters any obscene song, ballad or words in or near any
public place, shall be punished with imprisonment of either 34 description for a
term, which may extend to 3 months or with fine or both. (Cognizable, bailable
and triable offences),
2-Section 354, IPC deals with assault or criminal force to a woman with the
intent to outrage her modesty: Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine or both.
3-Section 509, IPC deals with ‘word, gesture or act intended to insult the
modesty of a woman: Whoever intending to insult the modesty of any woman
utters any word, makes any sound or gesture, or exhibits any object intending
that such word or sound shall be heard or that such gesture or object shall be
seen by such woman, or intrudes upon the privacy of such woman, shall be
punished with simple imprisonment for a term which may extend to one year,
or with fine, or both. (Cognizable and bailable offences). Civil suit can be file for
damages under tort laws. That is, the basis for filing the case would be mental
anguish, physical harassment, loss of income and employment caused by the
sexual harassment.
4-IRWPA: Under the indecent Representation of women (Prohibition) Act
(1987) if an individual harasses another with books, photographs, paintings,
films, pamphlets, packages, etc. containing “indecent representation of
women”, they are liable for a minimum sentence of 2 years, Further section 7
(Offenses by Companies) holds companies responsible (guilty) where there has
been “indecent representation of women” (such as the display of pornography)
on the premises. Person guilty of offenses under this act, shall be punished with
a minimum sentence of 2 years.
5-Sexual harassment at work place: Where any such acts is committed in
circumstances where under the victim of such conduct has a reasonable
apprehension that in relation to the victim’s employment or work whether she
is drawing salary, or honorarium or voluntary, whether in government, public
or private enterprise such conduct can be humiliating and may constitute a
health and safety problem it amounts to Sexual harassment. It has been laid
down by the Supreme Court that it is the duty of the employer or other 35
responsible persons in work places or other institutions to prevent or deter the
Commission of acts of sexual harassment and provide the procedure for the
resolution, settlement or prosecution of acts of sexual harassment by taking all
steps required.
Steps to be taken by the employer: All Employer or persons in charge of work
place whether in public or private sector should take appropriate steps to
prevent sexual harassment.
6- Section- 312- Causing miscarriage- Whoever voluntary causes a women with
child to miscarry, shall, if such miscarriage be not caused in good faith for the
purpose of saving the life of the women be punished with imprisonment of 3
yrs or with fine. If the women be quick with child shall be punished with
imprisonment for 7 yrs or with fine.
7-Sec. 314-16- Causing miscarriage without women consentwhether the women
is quick with quick with child or not shall be 37 punished with imprisonment
for term which may extend to 10 yrs shall also be liable to fine.
8-Sec. 315 Act done with intent to prevent child being born alive or the cause it
to die after birth shall punished for 10 yrs.
9-Sec. 372 and 373 penalize buying and of minor girls for purposes of
prostitution. Sec. 361- Kidnapping from legal guardian.
10-Sec. 366- Kidnapping, abduction or inducing women to compel her to
marry.
11-Sec.366-A- procuration of a minor girl.Sec.
12-366-B- Importation of girl from foreign country, etc., has a bearing on
curbing conditions which may lead towards trafficking and prostitution

**They should take the following steps:

(a) Express prohibitions of sexual harassment as define, above at the work
place should be notified. Published and circulate in appropriate ways.
(b)The Rules/Regulations of Government and public sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the
offender,
(c) As regards private employers steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1940.
(d)Appropriate work conditions should be provided in respect of work, leisure,
health and hygiene to further ensure that there is no hostile environment
towards women at work places and no employee woman should have
reasonable grounds to believe that she is disadvantaged in connection with her
employment.
Complaints, Criminal proceedings / disciplinary action:
1. Whether or not such conduct constitutes an offence under law or a breach of
the service rules, an appropriate complaint mechanism should be create in the
employer’s organization for redress of the complaint made by the victim.
2. Such complaint mechanism should ensure time bound treatment of
complaints.
3. The complaint mechanism, referred above should be adequate to provide,
where necessary, a Complaints Committee, a special counselor or other support
services, including the maintenance of confidentiality.
4. The Complaints Committee should be headed by a woman and not less than
half of its member should be a woman.
5. Further, to prevent the possibility of any undue pressure or influence from
senior levels, such Complaints Committee should involve a third party, either
NGO or other body who is familiar with the issue of sexual harassment.
6. Complaint procedure must be time bound. Confidentiality of the complaint
procedure has to be maintained.
7. Complainants or witnesses should not be victimized or discriminated against
while dealing with complaints.
8. The Complaints Committee must take an annual report to the Government
department concerned of the complaints and action taken by them.
9. The employers and person in charge will also report on the compliance with
the aforesaid guidelines including on the reports of the Complaints Committee
to the Government department.
10.The head of the organization, upon receipt[t of the report from the
Complaints Committee shall after giving an opportunity of being heard to the
person complained against submit the case with the Committee’s
recommendations to the management.
11.The Management of the Organization shall confirm with or without
modification the penalty recommended after duly following the prescribed
procedure.
12.Where the conduct of an employee amounts to misconduct in employment
as defined in the relevant service rules the employer should initiate appropriate
disciplinary action in accordance with the relevant rules.
13-Third Party Harassment: Where sexual harassment occurs as a result of an
act or omission by any third party or outsider, the employer and person in
charge will take al steps necessary and reasonable to assist the affected person
in terms of support and preventive action.
.
Case Laws

1-Priya Patel v. State of M.P.

Facts: The prosecutrix was returning home after her sports meet and the husband
of the appellant met her at the railway station and told her that her father has sent
him to pick her. He took her to his house and raped. During the commission of
rape, appellant (the wife) entered the room and prosecutrix asked for the help but
instead of savinf her, the appellant slapped her and closed tthe door and left the
place of the incident. The accused husband was charged under Section 376, IPC
whereas the appellant wife was charged for commission of offence punishable
under Section 376(2)(g), IPC.

The appellant wife challenged the legality of the charge framed against her
under Section 376(2)(g), IPC on the ground that since a woman cannot commit
rape and so cannot be convicted for commission of ‘gang rape’.

Judgment: The court held that a woman cannot said to have an intention to
commit rape. Therefore, the appellant cannot be prosecuted for alleged
commission of an offence punishable under Section 376(2)(g).

2- Tukaram v. State of Maharashtra.

Facts: Mathura, a Harijan girl developed intimacy with a boy, Ashoka. Her
brother lodged a report in the Police Station that Mathura had been kidnapped by
Ashok. After sometime, Mathura was brought to the Police Station and statement
was recorded. Since, it was late at night, so there were two constables (appellants)
present at the police station at the time. The appellants asked Mathura to stay at
the police station and asked her companions to wait outside. One of the
appellants took her into the washroom and light a torch focusing on her private
parts and thereafter dragged her and raped in spite of her protests. Then, the
other appellant came and wanted to rape her but couldn’t as he was highly
toxicated. Since, all the lights of the police station was off and nothing was visible,
the companions of Mathura called her name and shortly afterwards, Mathura
emerged out of the police station and alleged that one of the constables had raped
her. The crowd became aggressive and so, her FIR was lodged on behalf of her
statement. Doctor’s report stated that there was no injury on the body of Mathura.
Her hymen revealed old ruptures. The appellants contended that since there was
no direct evidence about the nature of the consent of the girl to the alleged act of
sexual intercourse, it can be inferred from the available circumstances that she did
this with her passive submission.

Judgment: The court held that no marks of injury was found on the body of the
girl after the incident and this indicates that the intecourse was a peaceful affair
and the story made by the girl was fictitious. Therefore, no offence is brought
against the appellants.

This case is popularly known as ‘Mathura Rape Case’.

After this case, it was interpreted by the Apex Court in many cases that to
constitute the offence of rape, it is not important that there must be some injury
on the body of the victim.

3-Rupan Deol Bajaj v. K.P.S. Gill

Facts: The petitioner was an IAS Officer and accused was DGP, Punjab. The
petitioner was invited to a party where the accused was also present. The accused
asked the petitioner to come and sit next to him and when she went to sit, he
pulled the chair closer to him and the petitioner was surprised by this act and she
pulled her chair back to original place and again he pulled the chair closed to him.
The petitioner asked him to leave but he again asked petitioner to accompany him
in a commanding voice. She got apprehended and frightened and immediately
pulled her chair back and turned to get out. At this point, the accused slapped the
butt of the petitioner in the presence of all the guests which was very
embarrassing for her. She filed an FIR against him.
Judgment: The High Court quashed the FIR and held that the act was covered
under Section 95, IPC.

The Supreme Court disagreed with the High Court and held that quashing FIR is
illegal and Section 95, IPC is not at all applicable. The court further added that
when an offence relates to the modesty of women, it could not be trivial under
any circumstance. Therefore, the accused was held liable under Section 354, IPC.

4-Raju Pandurang Mahale v. State of Maharashtra.

Facts: The accused brought the victim to the house of co-accused on a false
pretext. They confined her in the house and brought liquor which she was forced
to drink. The victim was then disrobed and her nude photographs were taken.

Judgment: The Supreme Court held that the accused was guilty under Section
354, IPC as their acts were affront on the normal sense of femanine decency.

5- State of Punjab v. Major Singh.

Facts: In this case, the accused had caused injuries to the vagina of a seven and a
half months old child by fingering.

Judgment: It was held that the accused was liable for outraging the modesty of
the child under Section 354, IPC. The court further added that the essence of a
woman’s modesty is her sex. Young-old, intelligent or imbecile, awake or
sleeping; women possesses a modesty capable of being outraged.

**Following are the Medically related crime against the Woman

1-Female infanticides and sex selective abortions
India has a low sex ratio, the chief reason being that many women die before
reaching adulthood. Tribal societies in India have a better sex ratio than all
other caste groups put together. This is spite of the fact that tribal communities
have far lower levels of income, Literacy and health facilities. It is therefore
suggested by many experts. That the low sex ratio in India can be attribute to
female infanticides and sex-selective abortions. All medical tests that can be
used to determine the sex of the child have been banned in India, Due to
incidents of these tests being used to get rid of unwanted female children before
birth. Female infanticide (Killing of girl infants) is still prevalent in some rural
areas. The abuse of the dowry tradition has been one of the main reasons for
sex-selective abortions and female infanticides in India.
2-Abortion permitted on therapeutic ground
Abortions are only permitted on medical ground in order to protect the life of
the mother. That is to say, the unborn child must not be destroyed except for
the purpose of preserving the yet more precious life of the mother.
3-Medical Termination of Pregnancy Act, 1971 Legalize abortion
In 1971 India liberalize its abortion low by enacted the above said Act, Which
permitting abortion number of conditions. The termination of pregnancy
involves a risk of life of a pregnant woman or a risk of grave injury to her
physical or mental health. The termination of pregnancy is not an offence if
there exists a substantial risk that, if the child were born, it would suffer some
physical or mental abnormalities so as to be seriously handicapped. The
termination of a pregnancy would not be an offence if the pregnancy is caused
by rape. The termination of pregnancy is not an offence of the pregnancy is
result of failure of any device or method used by the married couple for the
purpose of limiting the number of children. Hence the Act permits termination
of an unwanted pregnancy of a 39 married woman on the ground that a
contraceptive device failed. The provides very mere punishment for the
contravention of the provisions of the Act, which may extend to one thousand
rupee only.
The Pre-conception and Pre-natal Diagnostic Technique (Prohibition of Sex
Selection) Act, 2003: “An Act to provide for the prohibition of sex selection
before or after conception and for regulation of pre-natal diagnostic techniques
for the purposes of detecting genetic abnormalities of metabolic disorder or
chromosomal abnormalities or certain congenital malformation or seslinked
disorders and for the prevention of their misuse for sex determination leading
to female foeticide and for matter connected therewith or incidental thereto”
The use of technology for pre-natal determination of sex, in the context of India,
is wholly discriminatory to the female sex and has an impact on the status and
dignity of women. Large scale misuse of the technologies in future would
precipitate a severe imbalance in male and female ration. Keeping in view the
emerging technologies selection of sex before and after conception and problem
faced in the working of implementation of the Act and certain direction of
Hon'ble Supreme Court2New amendment in Sec. 23 legislator has increased the
punishment up to five yrs, imprisonment and fine up to Rs. 1, 00,000.
4-Human Right and Unborn Child
The basic principle of Human Right is that “All human being born free and
equal in dignity and right, as well as no discrimination on the basis of race,
colours, language, religion, right to vote, freedom of speech and freedom of
press. Human Rights are essential to the well being of every man, woman and
child. They are fundamental inviolable universal and inalienable. Right to life
personal liberty and security of woman includes her right to terminate
pregnancy, depend on whether or not the exercise of such right would affect the
right to life of unborn child3. The unborn child is person under Art.21 of Indian
constitution. Life begins immediately after conceiving and some believe life
begins only after completion of first trimester.

**Constitutional Provisions
The Muslim conquest in the Indian subcontinent brought the purdah practice in
the Indian society. Polygamy was widely practiced especially among Muslim
and Hindu Kshatriya rulers in many Muslim families, women were secluded to
Zenana, by and large, the women in India faced confinement and restrictions. In
spite of these conditions to our amazement we find many women excelled and
found a niche in the fields of politics, literature, education and religion for
themselves.
Constitutional provisions
The Constitutional of India guarantees the right to equality and equal
protection before the law, right to life and provides for discrimination if favour
of women. Untouchabaility has been prohibited in the Constitution and is made
an offence under the Protection of Civil Right Act, 1955. Article 17, The
Government recognizing the historical disadvantage and vulnerability of the
dalit women has adopted several measures to address their concerns and the
same has been highlighted in Article 4 of CEDAW.
The Government has passed two legislations namely the Protection of Civil
Rights Act (PCRA), 1955 and the Prevention of Atrocities against Scheduled
Caste/Tribes Act, 1989 to enable the dalits to enjoy human rights on par with
other sections of Indian society and empower them in their struggle for their
rights, but crimes against dalits continue to exist. The Constitution of India
contains various provisions, which provide for equal rights and opportunities
for both men and women.
The salient features are:-Article 14 guarantees the State shall not deny equality
before the law and equal protection of the laws;
Article 15 prohibits discrimination against any citizen on the ground of sex;
Article 15(3) empowers the State to make positive discrimination in favour of
women and children;
Article 16 provides for Equality of Opportunity in the matters of public
employment;
Article 23 prohibits trafficking in human beings and forced labour;
Article 39 (a) and (d) enjoins the State to provide equal means of livelihood and
equal pay for equal work;
Article 42 enjoins upon the State to provisions for securing just and humane
conditions of work; and for maternity relief;
Article 51A (e) imposes a fundamental duty on every citizen to renounce the
practices derogatory to the dignity of women;
Article 243 D (3) provides that not less than 1/3 rd of the total number of seats
to be filled by direct election in every Panchayat to be reserved for women, and
such seats to be allotted by rotation to different constituencies in a Panchayat;
Article 243 T (3) provides that not less than 1/3rd of the total number of seats
to be filled by direct election in every Municipality shall be reserved for women
and such seats may be allotted by rotation to different constituencies in a
Municipality;
Article 243 (4) provides reservation of offices of Chairperson in Municipalities
for SC, ST, Women in such a manner as the legislature of a State, may by law
provide; In pursuance of the above Constitutional provisions, various
legislative enactments have been framed to protect, safeguard and promote the
interest of women. Many of these legislative enactments have been in the
sphere of labour laws to ameliorate the working condition of women labour.
Part IV of the Constitution contains active obligations of the State to secure
social economic freedom which could not be granted at the time when the
Constitution was framed due to the prevalent socio-economic conditions. But,
equality in wages is surely not dependent on the existence of suitable economic
conditions. Yet, it was not guaranteed as a right but was incorporated in Part-
IV.
It was only in 1976, that the Equal Remuneration Act, 1976 a landmark
enactment was introduced, which provides for payment of equal wages to both
men and women workers for the same work, or of similar nature. The act also
prohibits discrimination against women in the matter of recruitment. Yet,
studies reveal that wage differentials still exist, and continue to persist.
The State, under Article 21A of the Constitution has an obligation to provide
free and compulsory education for all children in the age group 6-14 years.
Further Article 45 ensures that the State shall endeavor to provide early
childhood care and education for all children until they complete the age of 6
years and Article 51 A (k) has enforced a fundamental duty on the
parent/guardian to provide opportunities for education to his/her child
between the age of 6 to 14 years. Article 23 of the Constitution prohibits traffic
in human beings and forced labour.
Reformation for liberation of women
During the British Raj may reformers such as Mahatma JyotiraoPhule, Rja Ram
Mohan Roy, Ishwar Chandra Vidyasagar etc. fought for the upliftment of
women. Many women reformers such as PanditaRamabai also helped the cause
of women upliftment. In 1917, The first women’s delegation met the Secretary
of State to demand women’s political rights, supported by the Indian National
Congress. The All India Women’s Education Conference was held in Pune in
1927 In 1929, the Child Marriage Restraint Act was passed, stipulating fourteen
as the minimum age of marriage for a girl Though Mahatma Gandhi himself
married at the age of thirteen, he later urged people to boycott child marriages
and called upon the young men to marry the child widows. We also come
across a group of women who had inscribed their 46 names in history. Women
played and important part in India’s independence struggle. Then came the
independence and with it the plethora of laws for the reformation of the old
stagnant society. Thus the contribution of the great dignities like Mahatma
Gandhi, Pt. Jawaharlal Nehru and Dr. B. R. Ambedkar cannot be ignored.
Dr. B.R. Ambedkar and movement of women liberation.
Upon India’s independence on 15th August 1947, the new Congress-led
government invited Ambedkar to serve as the nation’s First law minister, which
he accepted. On August 29, Ambedkar was appointed chairman of the
Constitution drafting committee, charged by the Assembly to write free India’s
constitution. He is widely regarded as the “father of the Indian Constitution”
for his role in creating the document. Ambedkar won great praise from his
colleagues and contemporary observers for his drafting work. Ambekar’s work
would guarantee political, economic and social freedoms for untouchables and
other ethnic, social and religious communities of India.
The text prepared by Ambedkar provided constitutional guarantees and
protections for wide range of civil liberties for individual citizens, including
freedom of religion, the abolition of Untouchability and the outlawing of all
forms of discrimination. Ambedkar argued for extensive economic and social
rights for women, and also won the Assembly’s support for introducing a
system of reservations of jobs in the civil services, schools and colleges for
members of scheduled castes and scheduled tribes, a system akin to affirmative
action. India’s lawmakers hoped to eradicate the socio-economic inequalities
and lack of opportunities for India’s depressed classes through this measure,
which had been originally envisioned as temporary on a need basis. The
constitution was adopted on November 26, 1949 by the Constituent Assembly.
Speaking after the completion of his work, Ambedkar said: “I feel that the
Constitution is workable; it is flexible and it is strong enough to hold the
country together both in peace time and in war time. Indeed, if I may say so, if
things go wrong under the new Constitution the reason will not be that we had
a bad Constitution. What we will have to say is that Man was vile.”
Conclusion:-
Implementation of the standard of the CEDAW Convention at the
domestic/private sphere is still a challenge to be addressed. The Government is
strengthening the existing legislation and developing institutional machinery.
The Government has initiated the Sarva Shiksha Abhiya (SSA), a national
program for universal primary education. There are several schemes of the
government such as ‘Swayamsidha’23, the Support to Training and
Empowerment Programme (STEP)24 The RashtriyaMahilaKosh (RMK)25, the
Swarnajayanti Gram Swarozgar Yojana (SGSY)26, The Sampoorna Grameen
Rozgar Yojana (SGRY)27, Under the Urban Self-employment Programme
(USEP) of Swarna Jayanti Shahari Rozgar Yojana (SJSRY) assistance is provided
to the urban poor, especially women, living below the urban poverty line. What
ever is presented to people through various law has to be known to them as we
know “ignorance of law is not an excuse” therefore there is need to go to them
and create awareness amongst the common people (specially the women) so
that justice will not only be done but seen to be done. Indeed it is none but the
legal fraternity has to shoulder the responsibility.Notwithstanding the number
of laws to protect and safeguard the rights and interest of the women, the rate
of crime against women and victimization is mushrooming day by day. It is
well said that it takes two to tango. It implies that only laws are not responsible
to regulate and control the augmentation of the crimes against women in our
society. The suppression of evil eyes on women and inculcation of social ethics,
morals and values, respect and honor in every human being towards women is
the need of the hour and is a supplement factor that can equally contribute in
reducing the number of crimes against women. However, there is an exigency
of more strict and stringent laws so that any person intending to commit such
crimes couldn’t screw up the courage to act in furtherance of his intention.
Q.5 Illustrate, 'sexual exploitation of children in India ? Explain the cause and
remedies for prevention of child abuse in India.

Ans-
Introduction:-
Child sexual abuse (CSA) is a serious and widespread problem in India as it is in
many parts of the world today. The trauma associated with sexual abuse can
contribute to arrested development, as well as a host of psychological and
emotional disorders, that some children and adolescents may never overcome.
When sexual abuse goes unreported and children are not given the protective and
therapeutic assistance they need, they are left to suffer in silence. India leads the
world as a country with maximum cases of child sexual exploitation. Statistics
show that in India, every 155 minutes, a child under 16 years of age is raped.
Parents of sexually abused children are scared to tell anyone due to fear of being
shamed in society. It is not true that only strangers commit this crime. It can also
be committed by members of the family, relatives and even neighbours.
According to a survey, 90% of people sexually exploiting children are known to
the children or are people whom the children trust. There have been many
instances where the father himself, cousin brothers, uncle or neighbours have
sexually exploited children. This shows that children need protection even while
at home. They are afraid to mention this to anyone when it happens, probably out
of fear of not knowing what has occurred. Sexual exploitation is not rape alone.
There can be many forms of sexual exploitation like clicking indecent
photographs of children, making children watch pornographic content, physically
teasing them, etc.
The trauma of sexual exploitation in children sometimes impacts the children
through life; they become guilty, fearful, lonely and worried.

What is child sexual exploitation?

Child sexual exploitation (CSE) is a type of sexual abuse. When a child or young
person is exploited they're given things, like gifts, drugs, money, status and
affection, in exchange for performing sexual activities. Children and young
people are often tricked into believing they're in a loving and consensual
relationship. This is called grooming. They may trust their abuser and not
understand that they're being abused.

Children and young people can be trafficked to be sexually exploited. They're

moved around the country and abused by being forced to take part in sexual
activities, often with more than one person. Young people in gangs can also be
sexually exploited.
Sometimes abusers use violence and intimidation to frighten or force a child or
young person, making them feel as if they've no choice. They may lend them
large sums of money they know can't be repaid or use financial abuse to control
them.

Anybody can be a perpetrator of CSE, no matter their age, gender or race. The
relationship could be framed as friendship, someone to look up to or romantic.
Children and young people who are exploited may also be used to 'find' or coerce
others to join groups.

Types of child sexual exploitation

CSE can happen in person or online. An abuser will gain a child's trust or control
them through violence or blackmail before moving onto sexually abusing them.
This can happen in a short period of time.

When a child is sexually exploited online they might be persuaded or forced to:

1-send or post sexually explicit images of themselves

2-film or stream sexual activities

3-have sexual conversations.

Once an abuser has images, video or copies of conversations, they might use
threats and blackmail to force a young person to take part in other sexual activity.
They may also share the images and videos with others or circulate them online.

Gangs use sexual exploitation:

 to exert power and control

 for initiation
 to use sexual violence as a weapon.

Children or young people might be invited to parties or gatherings with others

their own age or adults and given drugs and alcohol. They may be assaulted and
sexually abused by one person or multiple perpetrators. The sexual assaults and
abuse can be violent, humiliating and degrading.
**Signs of child sexual exploitation

Sexual exploitation can be difficult to spot and sometimes mistaken for "normal"
teenage behaviour. Knowing the signs can help protect children and help them
when they've no one else to turn to.

Signs of sexual abuse and grooming

 Unhealthy or inappropriate sexual behaviour.
 Being frightened of some people, places or situations.
 Bring secretive.
 Sharp changes in mood or character.
 Having money or things they can't or won't explain.
 Physical signs of abuse, like bruises or bleeding in their genital or anal
area.
 Alcohol or drug misuse.
 Sexually transmitted infections.
 regnancy.

They may not know where they are, because they've been moved around the
country, and seem frightened, confused or angry.A child might know they're
being sexually exploited. They might be worried or confused and less likely to
speak to an adult they trust.

**Effects of child sexual exploitation

Both sexual exploitation in person and online can have long-term effects on a
child or young person. They may:

 struggle with trust and be fearful of forming new relationships

 become isolated from family and friends
 fail exams or drop out of education
 become pregnant at a young age
 experience unemployment
 have mental health problems
 make suicide attempts
 abuse alcohol and drugs
 take part in criminal behaviour
 experience homelessness.
Preventing child sexual exploitation
There are lots of ways to help prevent child sexual exploitation.
Teaching children and young people about healthy relationships and how to stay
safe online can help prevent sexual exploitation. These foundations can be laid
from a young age. Teach younger children how to stay safe from abuse.

It's also important to make sure children and young people know there are
trusted adults they can speak to about their worries. It can be difficult to know
what to do to help protect young people.whether they are thinking about joining
a gang, or they are already involved or want to leave, they need help and
support.

Help keep children safe online

Encourage transparency in what your children are doing online. You can keep
gaming devices and computers and laptops with webcams in the living room or
family spaces. Share Aware helps children learn about the risks of sharing
information online. Use parental controls and keep up-to-date on the apps and
games children and young people are using. NetAware is regularly updated and
has age ratings, information and advice

A study on Child Sexual Abuse carried out by Save the Children and Tulir in 2006
looked at the prevalence of child sexual abuse among school going children in
Chennai. The major findings of this study include:

1. Out of the total of 2211 respondents, 42% children faced at least one form of
sexual abuse or the other.
2. Among respondents, 48% of boys and 39% of the girls faced sexual abuse.
3. The prevalence of sexual abuse in upper and middle class was found to be
proportionately higher than in lower or in lower middle class.
4. Sexual abuse was found to be prevalent in both joint and nuclear families.
5. Majority of the abusers were people known to the child and strangers were a
minority.
6. Sexual harassment in public places and exhibitionism was higher by
strangers.
7. Sexual abuse of children was very often a pre-planned insidious abuse of a
relationship by an abuser over the child.
In 1998 the Indian NGO Recovery and Healing from Incest (RAHI) conducted
India’s first study of child sexual abuse. It surveyed 600 English-speaking middle
and upper-class women, 76 percent of whom said they had been abused in
childhood or adolescence, 40 percent by at least one family member.
Contrary to common perceptions of child sexual abuse, the statistics reveal that a
higher percentage of boys are subjected to sexual abuse and that most children
are abused by their parents, relatives, people they know or people who are in a
position of trust and authority over them; that is the cases of incest are high.
Incest leads to a greater mental trauma to the child.

WHY ARE LESS CASES OF CHILD SEXUAL ABUSE REPORTED?

The fear of social stigma, lack of faith in government institutions and cultural
norms discourage children and their parents from reporting cases of sexual abuse
against relatives or people in position of trust and authority. The victims are also
hesitant to make a complaint because of the intimidating way in which they are
questioned by the police officials which often leads to re-victimisation and also
the insensitive way they are treated by doctors who examine them for evidence of
rape. The judicial proceedings in India are a lengthy process and are a tiring
ordeal. This requires repeated testimony by the already traumatised victims and
their parents and thus many complainants often withdraw their complaint.

The rights guaranteed to children under the Constitution of India as

fundamental rights and as Directive Principles of State Policy (DPSP) are-

 Article 21A-Right to free and compulsory elementary education for all

children in the 6-14 year age group
 Article 23-Prohibition of traffic in human beings and forced labour
 Article 24-Right to be protected from any hazardous employment till the age
of 14 years
 Article 39 (DPSP)- (e) that the health and strength of workers, men and
women, and the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to their age or
strength; (f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood
and youth are protected against exploitation and against moral and material
abandonment
The atrocious gang rape of a student in New Delhi on 16th December, 2012
followed by massive public protests lead to the appointment of Justice Verma
Committee to make recommendations in criminal law so as to provide stringent
laws to deal with cases of sexual assault against women. The committee expressed
particular concern over the plight of children in residential care institutions. This
was subsequently followed by the passing of the Criminal Law Amendment Act,
2013 which made amendments to the provisions of rape in IPC.
Before the enactment of the POCSO Act, the following provisions of the Indian
Penal Code (IPC) could be invoked in cases of child sexual abuse:
 293-Sale, hire, distribution or circulation of obscene objects of literature to
people below 20 years of age. Punishment- jail up to 3 years or fine up to
Rs2000 or both. Jail up to 7 years or fine up to Rs5000 on subsequent
conviction.
 323- Voluntarily causing hurt. Up to 1 years imprisonment
 324- Voluntarily causing hurt by dangerous weapons or means. Any
substance which is dangerous to the human body to inhale, swallow or
receive into the blood by any means. Imprisonment for up to 3 years or fine
or both.
 325- Causing grievous hurt. Up to 7 years.
 354- Assault or criminal force to women with intent to outrage her modesty.
Punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.

**The following provisions to section 354 of IPC were added by the Criminal
Law Amendment Act, 2013.

354A- Sexual harassment and punishment for sexual harassment

354B- Assault or use of criminal force to women with intent to disrobe

354C- Voyeurism

Section 375 and 376 were also amended by the Criminal Law Amendment Act,
2013.

 375- A man is said to commit rape if he penetrates, inserts, manipulates with

the penis, any body part, or any object into the vagina, mouth, urethra or
anus of a woman and applies his mouth to the vagina, mouth , urethra or
anus of a woman under the following circumstances- 1. Against her will. 2.
without her consent. 3. with her consent, when her consent has been obtained
by putting her or any person in whom she is interested in fear of death or of
hurt. 4.With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married. With her consent,
when, at the time of giving such consent, by reason of unsoundness of mind
or intoxication or the administration by him personally or through another of
any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent. 6. With or
without her consent, when she is under eighteen years of age (Exception) —
Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape.] 7. When she is unable to communicate
consent.
 376 (1) Whoever, except in the cases provided for in sub-section (2), commits
rape, shall be punished with rigorous imprisonment of either description for
a term which shall not be less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.
376 (2)- Special circumstances

376A- Injury which causes the death or persistent vegetative state

376B- By husband upon his wife during separation

376C- By a person in authority

376D- Gang rape

376E- Repeat offenders

 377- Unnatural offences.— Whoever voluntarily has carnal intercourse

against the order of nature with any man, woman or animal, shall be
punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine. Explanation.—Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.
 326- Causing grievous hurt by dangerous weapons. Up to imprisonment for
life.
 326A and 326B (Added by the Criminal Law Amendment Act, 2013)-
Voluntarily causing grievous hurt by use of acid or disfiguring any part of the
body.
 452- House-trespass after preparation for hurt, assault or wrongful restraint.
Punishment up to 7 years.
 458- Lurking house-trespass or house-breaking by night after preparation for
hurt, assault, or wrongful restraint. Punishment up to 14 years.
 503- Criminal intimidation
 506- Punishment for criminal intimidation.—Whoever commits, the offence of
criminal intimidation shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both; If threat be to cause death or grievous hurt, etc.—And if the threat be to
cause death or grievous hurt, or to cause the destruction of any property by
fire, or to cause an offence punishable with death or 1[imprisonment for life],
or with imprisonment for a term which may extend to seven years, or to
impute, unchastity to a woman, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or
with both.
 509- Word, gesture or act intended to insult the modesty of a woman or
exhibiting any object that intrudes upon the privacy of such woman, shall be
punished with simple imprisonment for a term which may extend to one
 year, or with fine, or with both. (Amended in 2013 as “term which may
extend to 3 years, and also with fine”)
 511- Attempt to rape. Half the punishment awarded for rape.

**International conventions and agreements

which can be invoked to deal with cases of child sexual abuse and to which India
is a signatory, are:

· Universal Declaration of Human Rights- was adopted by the United

Nations General Assembly on 10th December,1948. The following articles of
UDHR promote the rights of children-

· Universal Declaration of Human Rights- was adopted by the United Nations

General Assembly on 10th December,1948. The following articles of UDHR promote
the rights of children-

Article 1-All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a
spirit of brotherhood.

Article 3 -Everyone has the right to life, liberty and security of person.

Article 5 -No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.

Article 22 -Everyone, as a member of society, has the right to social security and is
entitled to realization, through national effort and international co-operation and
in accordance with the organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the free development
of his personality.

 Convention on the Rights of the Child- This convention provides for the basic
rights of survival, development, protection and participation rights to
children. The specific articles invoked in cases of child sexual abuse are:
Article 6- Right to life, survival and development; Article 4 – Governments have a
responsibility to take all available measures (assessing social, legal, health and
educational systems) to make sure children’s rights are respected, protected and
fulfilled. This may involve changing existing laws or creating new ones; Article
16- Right to privacy; Article 34-Governments should protect children from all
forms of sexual exploitation and abuse; Article 19- Protection of children from all
forms of violence.

**The Integrated Child Protection Scheme (ICPS)

It is a comprehensive scheme introduced in 2009-10 by the Government of India
to bring several existing child protection programmes under one umbrella. It is
based on the cardinal principles of “protection of child rights” and the “best
interest of the child”. Under this scheme funds are available for setting up and
maintenance of Child Welfare Committee (CWC) (the committee has the same
powers as a Metropolitan Magistrate) and Juvenile Justice Board (JJB). However,
the officials in these committees are not well trained to monitor the conditions of
the residential care facilities and orphanages. Child budget has decreased from Rs
81,075.26 crore in 2014-15 to Rs 57,918.51 crore in 2015-16. It has seen a “sharp
decline” from 4.52 per cent in 2014-15 to 3.26 per cent in 2015-16. Thus the officials
of the ICPS are over worked and lack resources for the effective implementation
of the scheme. Childline 1098 is a toll free number to help children in distress and
it is run by the Ministry of Women and Child Development and the Childline
India Foundation. As a result of new funding that this project receives from the
ICPS, the helpline operates in more than 200 cities and districts across India.

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) Act, 2000-

The Act provides for the establishment of Child Welfare Committees and special
juvenile police units. It also establishes rules for monitoring children’s residential
care facilities.

CHILD WELFARE COMMITTEES (CWC)- The Juvenile Justice (Care and

Protection of Children) Act, 2000 provides for the establishment of CWC in every
district in India. CWC are quasi judicial bodies which overlook the government’s
welfare and police officers and inspect children’s residential care
facilities. However, CWC officials are appointed by state government which often
leads to lack of transparency in the work carried by it. While 83% members have
training in child rights, only 44% have received training in Juvenile Justice System
and child protection.

Hence Protection of Children From Sexual Offences Act (POCSO) was passed
by the Parliament of India in 2012 to deal with the heinous crimes of sexual
exploitation and sexual abuse of children. Section 2(d) of the Act defines “child”
as ‘any person below the age of 18 years’. According to this Act Child Sexual
Abuse includes a variety of sexual offences such as:-
 Penetrative sexual assault (Section 3) – A person is said to commit penetrative
sexual assault if he penetrates his penis to any extent into the urethra, anus,
vagina or mouth of the child or makes the child to do so with him or any
other person. It also includes penetration by any object or part of the body
(not being the penis). Provision is also provided for sodomy.
 Aggravated penetrative sexual assault (Section 5)- Whoever being a police
officer, member of the armed or security forces, public servant, staff and
 management of a remand home, etc. (a person in a position of trust or
authority) Commits penetrative sexual assault on a child, is said to commit
aggravated penetrative sexual assault.
 Sexual assault (Section 7)- “Whoever, with sexual intent touches the vagina,
penis, anus or breast of the child or makes the child touch the vagina, penis,
anus or breast of such person or any other person, or does any other act with
sexual intent which involves physical contact without penetration is said to
commit sexual assault.”
Thus the Act recognises cases of non penetrative sexual assault and also is gender
neutral, that is, both male, female and children themselves can be the
perpetrators.

The POCSO Act also provides that no reports in any media shall disclose the
identity of the child until the special courts permits the disclosure if it is in the
best interests of the child. The media cannot make any comments on the child
which is not authentic and which may lead to lowering the reputation or invading
the privacy of the child. This provision helps in ensuring that the media does not
unnecessarily harass and re-victimise the child.

According to Section 44 of POCSO, the National Commission for the Protection

of Child Rights (NCPCR) which has been established under the Commission for
Protection Of Child Rights Act, 2005 is responsible for monitoring the
implementation of the provisions of POCSO. The Commission’s mandate is “to
ensure that all Laws, Policies, Programmes and Administrative Mechanisms are
in consonance with the Child Rights perspective as is enshrined in the
Constitution of India and also the UN Convention on the Rights of the
Child.” The NCPCR also proposes new laws, analyses existing laws and can also
initiate investigations in suspected cases where children’s rights are involved. It is
a quasi judicial body and can follow up cases referred by individuals who feel
that their complaints are not being properly addressed by the police and
government officials.

The POCSO is a comprehensive Act and is a progressive step taken by the

parliament of India to deal with Child sexual Abuse in India. However, certain
flaws in the Act need amendment and it is essential to ensure the proper
implementation of this Act. For this purpose, the NCPCR which is entrusted with
its implementation should be provided with more resources and manpower to
carry on its functions effectively. It is also necessary to ensure that its officials and
the officials of the CWC are trained in child protection laws and are backed by
effective investigation units. Police and the doctors examining the victim must
also be trained in sensitisation programmes to deal with the abused child so that
the child is not re victimised by the hostile attitude of doctors and police officials.
It must be ensured that all state governments and union territories establish their
own CWC in every district and state commission for protection of child rights in
furtherance of the objectives of the Act. Steps should also be taken to ensure the
registration of all residential child care facilities, their adherence to adequate
standards and regular checks on them.

Causes
The supply and demand for children in the sex trade industry is greatly
influenced by the structure of a country. Kevin Bales says the increase of children
sold into prostitution reflects the industrial transformation the country has
experienced in the last fifty years. Young girls in Thailand are commonly from
northern areas. Because of the harshness of the land and a family’s dependency
on a good harvest many families see their daughters as commodities.

Prevention through education

One of the many ways to aid in the prevention of child sexual exploitation is
through education. World Vision is one of the leaders in educating young girls
on the dangers of trafficking and educating them on what they would really be
getting themselves into. Other efforts involve educating police personnel. The
Family Planning Association of Nepal hosted a training session for the local police
on how to handle a trafficking situation and how to identify women and children
in sexual exploitative situations. Public education is also a must. Because child
sexual exploitation is driven by demand it is “crucial to raise the perceptions of
consumers about the harm that is caused.” It has been suggested that public
shutdowns of those who operate sex tours could influence deterrence. Other
efforts include simply educating potential victims about the tactics recruiters
often use. The previously mentioned Protocol requires members to provide
preventative measures against child sexual exploitation; among these
preventative measures is educating the public, especially families, on the dangers
of sex tourism and trafficking.

Case Law

Saakshi v UOI

This changed into the case filed by means of an NGO called ‘Saakshi’ elevating
subject about the dramatic growth of sexual violence towards ladies and kids and
the implementation of the provisions of IPC specifically 377, 375/376 and 354. The
petitioners raised the trouble of confining rape instances handiest to penile-
vaginal penetration which has now been amended by way of the 2013 criminal
law modification because it became violative of Article 21 of the Constitution. A
number of statistical records have discovered that kids are regularly abused in
away apart from the penile/ vaginal penetration. It is frequently with the aid of
penile/anal penetration, penile/oral penetration, finger/vaginal penetration or
object/ vaginal penetration. Additionally, setting those instances in the ambit of
section 377 might be enormously unjust. Petitioners had positioned emphasis on
Article 15 (3) of the Constitution which affords for unique provisions for women
and youngsters which necessarily implies ‘adequate provisions’.

Bachpan Bachao Andolan v UOI

A PIL was filed in the Supreme Court in the wake of serious violations of child
rights. The petition was filed specifically to discourage child trafficking from
circuses all over India. Children are very frequently sexually abused at these
places, which is a violation of Juvenile Justice Act and other international treaties
and covenants.

After POCSO

POSCO, 2012 was implemented to make it easier for the victims of sexual abuse to
get justice. The Act directs the use of more humane ways to deal with victims and
prohibit victimization of the child at the hands of the judicial system. Because of
which, the reporting of such cases has doubled due to increased awareness.

Nishu v Commissioner of Police, Delhi and Ors.

Petitioner was a minor girl, kidnapped and repeatedly raped by a group of nine
people. One among the nine people was a police constable in Haryana Police. The
prosecution failed to present any medical reports or a copy of the FIR under
Section 376D of the IPC and relevant provisions of the POCSO, Act. The Court, in
this case, said that it would be inappropriate to exercise its jurisdiction under
Article 32 as the case has been investigated by the Haryana Police.
Avinash v State of Karnataka

The appellant abducted the sufferer and had multiple sexual intercourses together
with her. A charge sheet became filed against the victim under section 366 of the
IPC and section 4 of the POCSO, Act. The honourable high court emphasized at
the age of sufferer as it’s far the foremost identifying element and the court set
apart the conviction in support of having dependable proof and disposing of the
case according to with law.

Change After the ‘Nirbhaya Case’

After the 2012 Delhi gang rape case, media in conjunction with different non-
governmental performed a totally crucial role in growing cognizance about infant
sexual abuse inside the country. The media and the NGOs stressed at the growing
rates of child abuse and at the incapability of the system to defend kids, as a
consequence pressurizing and forcing the authorities to address the problem and
to act for this reason within the interest of the kid population.

As an observer-up, the authorities took a prime step and the Parliament enacted
its first regulation in May 2012 to defend child sexual abuse. The want for this
regulation have become greater straight away after the case of Mrs Madhu v. the
State of Haryana regarding Ruchika Girhotra, who was molested by a police
officer whilst she became 14. In this situation, the accused asked Ruchika’s
parents to send her to Canada as she became a remarkable tennis participant. The
case changed into filed underneath section 354 study with section 509 IPC. The
accused, SPS Rathore escaped prosecution for years despite the fact that there has
been an eyewitness to the alleged acts. But, the Indian government has yet to
construct a robust and powerful social community to guard the well-being of the
kids.

The Flaws in the Justice System

It is rather critical to say anything at all about what are the results after a child has
been intimately abused which holds relevance not only for his or her well-being
but also for the protection of other children because if the perpetrator is never
discovered or if he/she allowed moving free, there are high chances of further
mistreatment. Sometimes, the complaints of your children are simply rejected by
the family members, Authorities and the medical experts. In almost all of the
circumstances, the perpetrator can be a family member or a person entrusted with
care and custody of the child. In such cases, the kid would refrain from speaking
up due to the frequent menace of the family users. In a case before the Delhi
court, the accused was convicted for achieving abducted and raped a 6-year girl
who was a part of his family. The accused has earlier raped another young lady of
his family but the case has not been reported due to the stigma attached as the
family members believe reporting a case will bring shame to their family. Also,
there are instances where the mothers don’t take any action because of fear of
being dumped off the house by the in-laws. In other cases, the loved one’s fear of
being ostracized from the society.

One of the most significant reasons why families avoid come forward to survey
the cases of child sexual abuse because they feel that they will not be treated
sympathetically by the authorities and the medical experts which further gives to
their trauma. Various doctors in India are short of the competence to adopt such
sensitive cases. Their job should include treating child well and counselling them.
Police officials also try to persuade the parties to take back their cases. Sometimes
courts also drag cases for a long time. This kind of shows the inability of the
criminal justice system to manage the sexual offences including minor which is a
highly sensitive issue. Furthermore, children are also mistreated in institutions
like NGOs for orphans and so forth which are generally established for the
security, welfare and development of a child. They are bestowed with the
responsibility of caring for the children residing in such establishments.
Nonetheless, the cases of sexual abuse of children during these institutions are
incredibly common.

.
Conclusion

Child abuse at workplaces is increasing day by day. Children are harassed to an

ultimate level. Due to family pressure and financial conditions, they are pushed to
work for their family. A person is treated as the child when he/she is less than 18
years of age. The government has taken the initiatives to control this kind of
abuse; all these are for the commercial business. A lot of abuse takes place in
houses, where the landlords make use of children for their purpose and make
them work from day to night. But the government is still working on this part so
that the domestic abuse could also be minimized in our country. Article 21 of
Indian Constitution itself guarantees right to live with dignity to every citizen of
India. Therefore, children should not be taken for granted and cannot be used as a
tool of entertainment for the rich people.

Q.6 Make a critical appraisal of, Naxalite movement causes and cure.
Ans :-
 Introduction-
The adhiars i.e the tenant was exploited at the hand of the jotedars i.e.
the landlords. There was a discontent peasants and landless labourers. The
organised effortss initially by the Communist Party and lateron byb in West
Bengal got together to expresse their frustration in the form of organised
efforts. The share of adhiars was to undergo deductions on account of supply
of cattle plough, seeds and loan of paddy at a totally disproportionate rate.
Free-of-cost maintenance of jotedars’ labourers, stable and granary was also
the burden of adhiars. The ever-increasing burden of debt, loss and fraud, in
addition to feudal practices of social hierarchy, provoked the peasants to
revolt against the system. Added to this were the anti-people activities of
gardeners and estate owners. Thus the relation between the landlords
(jotedars) and tenants (adhiars) had become deepened with the exploitative
practices about crop sharing and money lending.
Naxilism: In remote area of Darjeeling district there is a cluster of
villages known as Naxalbari. In this village in 1967 the revolutionary peasants
losing faith in legal remedy they resorted to revolutionary thoughts and
strategies developed by leaders under influence of Marxism. Which latter was
recognized as Naxilism derived after the name of the village cluster.
Naxalbari proclaimed that the existing economic and political could be
overthrown by the oppressed classes only through the use of revolutionary
violence and then regenerated India could arise. Ultima’tely both the fractions
the CPI and CPI(M) abandoned Marxism —Leninism and Naxalbari
revolutionaries were guided by revisionist orientation, ‘the new orientation’
and the ‘new concepts’ preached by Khrushchev and his successors. Guided
by Mao Tsetung thought Charu Majumdar made his contribution to what
brought about the Naxalbari Sttrugle writes Suniti Kumar Ghosh.

**Real Position of Naxalite Movement in india

Many civil society activists working in Maoist-affected areas are similarly

finding themselves under assault from both sides. The Maoists claim to be
fighting for the poor and the marginalized, demanding loyalty and shelter
from villagers, while government forces seek public support in protecting
those same villagers from the Maoists. But the activities of civil society
activists on behalf of the impoverished and vulnerable local population put
them at risk from the Maoists and government security forces alike. The
Indian prime minister has described the fight with the Maoist insurgents as
India‟s “biggest internal security challenge.” According to the Home
Ministry, over 3,000 people have been killed in the Maoist conflict since 2008.
 In recent years the Maoist movement has spread to nine states in central and
eastern India.The Maoists have a significantpresence in the states of
Chhattisgarh, Orissa, Andhra Pradesh, Maharashtra, Jharkhand, Bihar, and
West Bengal, and a marginal presence in Assam, Madhya Pradesh and Uttar
Pradesh. The Maoists assert that they are defending the rights of the
marginalized: the poor, the landless, Dalits, and tribal indigenous
communities. They call for a revolution, demanding a radical restructuring of
the social, political, and economic order.iiiThe Maoists believe the only way
marginalized communities can win respect for their rights is to overthrow the
existing structure by violent attacks on the state. Various state governments
have responded to this challenge by carrying out security operations to defeat
the Maoist movement, provide protection for local residents, and restore law
and order. The police in these states receive support from central government
paramilitary forces. Various state and national forces often conduct joint
operations, in part to deny the Maoists sanctuary in other states.ivBecause of
the ineffectiveresponse by states, in 2009 the central government started to
coordinate security operations.The situation in Chhattisgarh is undoubtedly
deeply distressing to any reasonable person. What was doubly dismaying to
us was the repeated insistence that the only option for the State was to rule
with an iron fist.

**Causes of Naxalite movement:

The discontent peasants and landless labourers in West Bengal got
together to expressed their frustration in the form of organised efforts. The
adhiars i.e the tenant was exploited at the hand of the jotedars i.e. the
landlords. The share of adhiars was to undergo deductions on account of
supply of cattle plough, seeds and loan of paddy at a totally disproportionate
rate. Free-of-cost maintenance ofjotedars’ labourers, stable and granary was
also the burden of adhiars. The ever- increasing burden of debt, loss and
fraud, in addition to feudal practices of social hierarchy, provoked the
peasants to revolt against the system. Added to this were the anti-people
activities of gardeners and estate owners. Thus the relation between the
landlords (lotedars) and tenants (adhiars) had become deepened with the
exploitative practices about crop sharing and money lending.
Inthe report of an Expert Group submitted to the Planning
Commission, in April, 2008 states that, “The analysis of roots of discontent,
unrest and extremism rely upon extensive discussions based on official
reports in the past, publications from the extremist groups, reports of human
rights groups, books by observers of such developments, and media coverage
in the background of field insight and interaction of members of the Expert
Group. This has revealed that the causes are varied depending on
characteristics of an area; social, economic and cultural background; a history
of not working out solutions to lingering structural problems; and ineffective
application of ameliorative steps undertaken since Independence and more so
 since the mid-sixties of the last century. Dissent movements, including the
extremist Naxalite movement, are not confined to difficult hilly and forested
areas but cover large contiguous tracts in the plains. They are not limited to
dry land areas of recurring crop failures but extend to irrigated commands of
major irrigation systems, as in the state of Bihar. The causes are, therefore,
complex. The intensity of unrest resulting in extremist methods and effort to
resolve issues through violent means as a challenge to state authority is in
response to the gathering of unresolved social and economic issues for long
durations. It creates’ the impression that policy making and administration
responds to extreme means.
The more recent development is in the emergence of CPI (Maoist) after
the merger and consolidation two powerful naxalite streams in September,
2004. This new formation, since its inception, is defining the official
understanding of the extremist phenomenon of the level of the state as well as
the Union Government. This has appeared in the public perception as a
simplistic law-and-order face-off between the official coercive machinery and
this more radical extremist political formation. The social consequence results,
then, in undermining instruments of 78 social and economic amelioration as
well as processes of democratic exchange to resolve persisting issues. This is
the crux of the problem”. After perusing the report of experts and the report
of Experts (2008) and the report of the Ministry of Home Affairs (2003 -04) we
get to understand that the Naxalite movement is principally a political action
for armed conquest of State power.
The failure of the government to reach out to these areas is another major factor
that aids the growth of Naxalism in these areas. The governance is poor or worse,
in certain places it is non-existent. Popular schemes take long to devise but longer
to implement. Even while implementing, the benefit always reach those who are
the „naves‟ and not those who are in need.The failure in formulation and
implementation of the right schemes at the right time, and targeting the right
people is the major problem. Despite the rise of the Naxalite problem the state
failed to tackle it effectively by providing the needed economic and political
measures.The state failed to perform its duties; in short, governance, or the lack of
it, in theseareas is a primary reason for the growth of the Naxalite problem.
Furthermore, political interference has also played a significant role in the
implementation of governmental schemes. Leaders have always tried to delay the
projects promote by opponent parties.On the contrary, the Naxalite groups have
been collecting levies from the local population.They collect funds from
individuals, groups, and even government officials as commissions for letting
them function in areas that are under their control.This money is used by the
Naxalite groups to buy arms and recruit new members, especially from the
unemployed youths in rural areas. Since the Naxalites provide a monthly salary
and uniform, they have become popular amongst the unemployed youths. Thus
thegrowth of Naxalite movement is due to various factors, it is not merely a
question of sharing natural resources. The causes of the Maoist movement in
India are structural. Economic, political and cultural dimensions are closely
linked. The first is the economic situation which is exploited by Naxalites and
their extreme left ideology. It seems much like a catch-22 situation. On the one
hand, India has experienced relatively fast economic growth, which has led to
increased levels of national wealth. To facilitate and continue this development,
businesses need more land and natural resources such as minerals. On the other
hand, this economic growth has been uneven among regions, and has widened
the disparity between the rich and the poor. Proponents of thesebusinesses argue
that these regions need economic development, if they are to catch up with their
richer counterparts. The Indian aboriginals, known as adivasis, live these richly
forested lands, which are wanted for development by businesses. The conflict
between economic progress and aboriginal land rights continues to fuel the
Naxalite‟s activities. Their strongest bases are in the poorest areas of India. They
are concentrated on the tribal belt such as West Bengal, Orissa, and Andhra
Pradesh where locals experience forced acquisition of their land for
developmental projects. Arundhati Roy, a Naxalite sympathiser said that the
tribal forestlands should be called a “MoUist Corridor” instead of the “Maoist
Corridor” as the people of these tribal forest lands have been wrestling with
“Memorandum of Understanding (MoUs) of the mining companies. Prashant
Bhushan, a civil rights lawyer noted that businesses are making adivasis go
through “sham formal consultation” processes where interests of the adivasis are
not sincerely considered.Other hand,the alienation that is being exploited by the
Maoists has a social, communal and regional dimension. The battle can also be
described between India‟s most neglected people and the nation‟s most powerful
industrial businesses. The adivasis make up about 8.4 percent of the population
and live in severe poverty. They live in remote areas where government
administration is weak and there is a lack of government services. These
indigenous people have the lowest literacy rates in the country and highest rates
of infant mortality. Given this socio-economic alienation, it is easy to see how the
Naxalite‟s ideology is popular among the rural poor and indigenous tribes, and
why the adivasis view the guerrillas as their “saviours”. The adivasis do not feel
like they have any political power to voice their grievances legitimately, and
therefore the alternative of subversive, illegal groups seem attractive. Some argue
that Naxalites are not concerned about the social or economic welfare of these
people and are simply using them as a means to its end goal of seizing political
power. The spread of Naxalism reflects the widespread alienation and
discontentment felt by large parts of the country that are systematically
marginalized. Dr. Subramanian, a former Director-General of the National
Security Guard and Central Reserve Police Force notes that Naxalism exists in
these tribal areas because of the dissatisfaction of the people against the
government and big businesses, the terrain is suitable for guerrilla tactics, and
there is no existence of a proper and effective local administration mechanism. In
these areas, the conditions are conducive to warfare and extremist ideologies.
Even if Naxalites are simply exploiting the adivasis‟ situation for their own ends,
their popularity indicates the power of the root causes to create such an
environment for insecurity and violence.

**Naxalite movement and its cure.

He complexity of the causes of the Naxalite problem as well as its

implications both for internal and external security reflect a solution that is
multi-dimensional and calls for a synergy between the central governments
and the states. In order to comprehensively dissolve the Naxalite threat, the
government has to address its root causes. Socio-economic alienation and the
dissatisfaction with the widening economic and political inequality will not
be solved by military force alone, which seems to be the main instrument
employed by the government. The problem calls for a three-pronged solution:
social and economic development, multi-lateral dialogue and military force.
In 1970 Jayaprakash Narayan thought to give solution to the Naxalite
problem. For him the Naxalism was basically a social, economical, political,
and administrative problem and to a small extend a question of law and
order. He suggested that arrests, imprisonments, and shootings could not put
down Naxalism or any other kind of revolutionary violence. Therefore he
undertook the work in Musahari of Bihar, the Naxal hit area, to wean the area
away from violence included establishment of the Gram Sabha; redistribution
of one twentieth of the land covered by gramdan; setting up of gramkosh;
organisation gram shanti sena, and legal confirmation of Gramdan. By
redistribution of land collected through gentle persuasion He looked into the
problem of landless labourers and cases of injustice and oppression. He was
of the opinion that the laws agrarian reform laws and Minimum Wages Act
were not implemented properly and that had led to the growth of the rural
violence. Law furnishes a false sense of promise and expectation, ultimately
leading to self- deception, dissatisfaction and frustration.
** Varioues suggestion to control the naxalite movement

1-Socio-economic development:
As the Naxalites are fuelled by discontent from the marginalizedand the poor,
a larger percentage of the national budget must be allocated to addressing the
needs of these regions. More of the national expenditure needs to be focused
on developing these poorer regions through initiatives regarding health,
education, social welfare and rural and urban development. Government
service delivery should be improved in these tribal areas. Both state and
government must ensure that things such as statutory minimum wages,
access to land and water sources initiatives are implemented. In coming up
with strategies for national economic growth, the government must always
bear in mind the possible effects of fast growth for all socio-economic groups
in a country as large and diverse as India. If the social needs ofthese
marginalizedpeople are addressed, there will be no discontent to fuel the
Naxalite‟s movements.
2-Dialogue :
Second, the government should initiate sincere dialogue with these
marginalised groups, the Naxalites and state leaders. The popularity of
Naxalites with the adivasis is a reflection of the fact that the government has
been unaware or “unapologetically indifferent to their plight”. By
communicating and starting a dialogue between these stakeholders, these
groups will feel that they being listened to. By opening dialogue, the
government can give opportunity for the rebels to join the mainstream by
showing them that solutions can be created together with the government, by
being part of the political system in a legitimate way. They no longerneed to
resort to violence to get the state‟s attention. For example, the former director-
general of AP concluded that as a result of the ceasefire and dialogue with
Maoists in 2004, the violence in the state decreased by 80-90 percent in the
region. As David Pilling noted, the challenge for India‟s leaders will be to
allow the necessary development in these poverty-stricken areas while
acknowledging the rights of a neglected indigenous group.
3-Military:
Currently, the main instrument employed by the government to address the
Naxalite threat is the increasing use of the military. While some military force
is still needed to combat against the Maoist guerrillas, it should not be the
only solution. By only addressing the issue by brute force, government risks
alienating civilians who are caught in the middle. Coercion of the state will
only encourage people to rally against it.
4-Governance:
The growing Naxalite insurgency also reflects a flaw in the federal structure.
Because law and order is seen as a state responsibility, the central government
is unable to be implementinga coherent national strategy to address the
threat. Ganguly notes that “in the absence of a near complete breakdown of
public order or without the express request of the afflicted state, the central
government cannot intervene.” The government has the overall responsibility
 of mobilizingdevelopment, but it cannot do sowithout the support of the
states. The central government and the states need to cooperate together to
solve the internal security threats and co-ordinate the implementation of this
multi-dimensional approach. Both organizationsmust complement and
support each other‟s initiatives and strategies.

5- Due to acquisition of land involuntary displacement of tribes ultimately

turning them landless.

6-The proposals of Land Acquisition must be such that they minimize

displacement and secure the rights of affected displaced persons.

**The Laws Made by the Government

1-Rehabilitation and Resettlement Policy, 2007 :

The main aim of this act is to minimize the displacement of people and to
promote non-displacing or least displacing alternatives.The Government issueda
rehabilitation policy on 11 October 2007 for the easy displacement of people who
lose their land for industrial growth. Under this policy land in change for land
will be given, job prospective to at least one member of the family, vocational
training and housing benefits including houses to people in rural areas and urban
areas will be some of the benefits
.
2-Forest Rights Act, 2006 :

The Scheduled Tribe and Other Traditional Forest dwellers (Recognition of forest
Rights) Act 2006 or the Forest Rights Act recognizes the rights of the scheduled
tribes and forest dwellers who have been living in the forests for years but their
rights have still not been recognized. The Ministry of Environment and Forests
has also allowed use of 1 hectare of land for nonforest purposes and conversion of
kattcha roads into pakka roads.

3- Chhattisgarh Special Public Securities Act, 2006 :

This bill provides definition of unlawful activities, declaring an

organizationunlawful, formation of an advisory board wherever the state
government feels the need for its establishment, procedure of the formation of the
advisory board, action of the advisory board, penalties viz punishments even for
not committing a crime, the power to notify a place being used for unlawful
activities and taking occupation of such place thereof and revision/bar against
intervention by the courts.

Are these laws effective? :

These laws have in many ways caused a lot of problems to the tribal‟s and the
scheduled castes by negating the spirit of the various safeguards available to the
scheduled tribes under the constitution and other laws in the country.The act
providing 'land for land' has become a nightmare for the government and has
become a stumbling block for ensuring industrialisation. As per the Unlawful
activities prevention act (UAPA) the government has banned all organisations
that have any connections with any Naxal movements like the MCC or the CPI-M
(Marxist-Leninist). There was no need of this bill to tackle Naxalism. This bill was
formulated, only to silence the appropriate discord and dissent brewing in the
minds of people in the areas affected by Naxalism due to persistent gnorance by
the government to their situation. This Bill has also failed to make a distinction
between the anti-social, anti-national elements from the people who are peace
loving.

4-CSPS Bill, 2005:

Itprovides the District Magistrate unconditional powers to notify places which he

thinks are being used for unlawful activities without any prior notification. There
is no requirement of production of anything as evidence to prove that the said
place is being used for unlawful activities. It is just a violation of principles of
natural justice as the aggrieved parties don't even get a fair hearing.This bill also
provides that any revision application has to be filed with the High court only,
challenging the validity of the order of the government. This petition has to be
filed within 30 days and that no court has the jurisdiction against any decision of
the court. Any kind of application or form of revision or injunction by a court or
officer except for the High court and the Supreme Court regarding any action to
be taken as a follow up to the order of the governmenthas been barred in this
Bill.So it can be said that this bill was totally uncalled for and has only be brought
to act as a blandishment to the people

.Conclusion-
Therefore the state must start to fight the conflict legally, minimize
collateral damage,strengthen the leadership of the security forces and abstain
from any human rightsviolation. The security forces should better start
 protecting the population living withinthe area of conflict instead of merely
confronting the Maoists on large scale. The Naxalite movement must be
challenged politically by presenting better alternatives to the Maoist approach
and offer new perspectives. In this regard the state should start addressing
the basic needs of the poor and fulfilling its main responsibilities to deliver
human development to these disadvantaged areas.

Q.7 Write a critical note on 'prison Reforms in India'.

Ans-

Introduction :-
Punishing the offenders is a primary function of all civil societies. The drama of
wrong doing and its retribution has indeed been an unending fascination for
human mind. However, during the last two hundred years, the practice of
punishment and public opinion concerning it has been profoundly modified due
to the rapidly changing social values and sentiments of the people. Thus,
punishment can be used as a method of reducing the incidence of criminal
behaviour either by deterring the potential offenders or by incapacitating and
preventing them from repeating the offence or by reforming them into law-
abiding citizens. And the objective of punishment can only be achieved by the
prison institution.

The existence of prisons can be traced back to the ancient period. Initially there
was a belief that rigorous isolation and custodial measures would reform the
offenders. In due course it is being substituted by the modern concept of social
defence.
Hate The Crime And Not The Criminal……….Mahatma Gandhi

All men are born equal and are endowed by their creator with some basic rights.
These rights are mainly right to life and liberty, but if any person doesn't comply
with ethics of the society then that person is deprived of these rights with proper
punishment. Many experts believe that the main objective of prisons is to bring
the offenders back to the mainstream of the society. Various workshops had been
organized by the State Government in collaboration with NGO's to bring reforms
in the current prison systems.

Many reforms can be made in jail administration, which are mainly: A- Class
prisoners can meet their own expenditure by depositing certain amount fixed by
the Government for enjoying special services like tea, newspapers, pillow, and 3
times non vegetarian food in a week and if they are vegetarian they will be served
ghee, dhal and buttermilk. Many inmates usually complain about inadequate
quality and quantity of food, which is required to be improved. The food is
required to be prepared in better hygienic conditions.

**Development of Thought:
Custody, care and treatment are the, three main functions of a modern prison
organization. For over 100 years, there was emphasis on custody which, it was
believed, depended on good order and discipline. The notion of prison discipline
was to make imprisonment deterrent.

Consequently, hard punitive labour with no regard for the human personalities
and severe punishments were the main basis of prison treatment. More than 40
prison offences have been listed in the jail manuals of many States and any
infraction was visited by quite a few barbaric punishments.

Gradually, the objective of imprisonment changed from mere deterrence to

deterrence and reformation. This led to the abandonment of some of the barbaric
punishments and introduction of the system of awards for good work and
conduct in the form of remission, review of sentences, wages for prison labour,
treatment in open conditions, parole, furlough, canteen facilities etc.

Revision has now been made to meet adequately the basic needs of food, clothing,
medical care etc. Educational and vocational training programmes along with
training in scouting etc , have been introduced in jails. Custodial requirements for
individuals are now at some places determined on the basis of their antecedents,
conduct and performance etc.

**Call for Prisoners Reforms at International Level:

The earlier United Nations Standard Minimum Rules for the Treatment of
Prisoners, 1955 consists of five parts and ninety-five rules. Part one provides rules
for general applications. It declares that there shall be no 'discrimination on
grounds of race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status. At the same time there is a strong
need for respecting the religious belief and moral precepts of the group to which a
prisoner belongs. The standard rules give due consideration to the separation of
the different categories of prisoners. It indicates that men and women be detained
in separate institutions. The under- trial prisoners are to be kept separate from
convicted prisoners. Further, it advocates complete separation between the
prisoners detained under civil law and criminal offences. The UN standard
Minimum Rule also made it mandatory to provide separate residence for young
and child prisoners from the adult prisoners. United Nations Standard
Minimum Rules for the Treatment of Prisoners, 1990 or Tokyo Rules (passed by
General Assembly Resolution 45/110 on 14 Dec, 1990) aimed at implementation
of non-custodial measures as an alternative to strict imprisonment.

**Prisoners Reforms: Prior Independence and Post-Independence:-

The modern prison system in India was originated by TB Macaulay in 1835. A
committee namely Prison Discipline Committee, 1836 was appointed, which
submitted its report on 1838. The committee recommended increased
rigorousness of treatment while rejecting all humanitarian needs and reforms for
the prisoners. Following the recommendations of the Macaulay Committee
between 1836-1838, Central Prisons were constructed from 1846.

The contemporary Prison administration in India is thus a legacy of British rule. It

is based on the notion that the best criminal code can be of little use to a
community unless there is good machinery for the infliction of punishments. In
1864, the Second Commission of Inquiry into Jail Management and Discipline
made similar recommendations as the 1836 Committee. In addition, this
Commission made some specific suggestions regarding accommodation for
prisoners, improvement in diet, clothing, bedding and medical care. Accordingly,
the Government of India appointed the All India Jail Manual Committee in 1957
to prepare a model prison manual. The committee submitted its report in 1960. In
1957, the Eighth Conference of the Inspector Generals of Prisons also supported
the recommendations of Dr. Reckless regarding prison reform. The report made
forceful pleas for formulating a uniform policy and latest methods relating to jail
administration, probation, after-care, juvenile and remand homes, certified and
reformatory school, borstals and protective homes, suppression of immoral traffic
etc. The report also suggested amendments in the Prison Act 1894 to provide a
legal base for correctional work.
Central Bureau of Correctional Services:
The establishment of a Central Bureau of Correctional Services at the Central level
in 1961 (renamed as the National Institute of Social Defence in 1975) was yet
another important development. This was the first Central agency to undertake
research, training, documentation etc, in social defence and assist and advise the
States on matters relating to social defence.
**Mulla Committee:
In 1980, the Government of India set-up a Committee on Jail Reform, under the
chairmanship of Justice A. N. Mulla. The basic objective of the Committee was to
review the laws, rules and regulations keeping in view the overall objective of
protecting society and rehabilitating offenders. To constitute an All India Service
called the Indian Prisons and Correctional Service for the recruitment of Prison
Officials. After-care, rehabilitation and probation should constitute an integral
part of prison service. The Mulla Committee submitted its report in1983.

**Krishna Iyer Committee:

In 1987, the Government of India appointed the Justice Krishna Iyer Committee to
undertake a study on the situation of women prisoners in India. It has
recommended induction of more women in the police force in view of their
special role in tackling women and child offenders.

**Reform in Prison Labour Scheme:

The objectives of 'prison labour' have varied from time to time. TheIndian Jail
Reforms Committee of 1919-20 recommended that the main objective of prison
labour should be the prevention of further crime by the reformation of criminals,
for which they were to be given instruction in up-to-date methods of work
enabling them to earn a living wage on release.
The other objectives were to keep the offenders use fully engaged to prevent
mental damage and to enable them to contribute to the cost of their maintenance.

Work was allotted to prisoners on the basis of their health, length of sentence
prior knowledge of a trade, and the trade which was most likely to provide a
living wage on release. After independence, punitive labour such as extraction of
oil by manual labour was abolished and more useful programmes were intro-
duced Co train offenders as technicians.

Some effort has also been made during the last three decades to train prisoners
largely drawn from among agriculturists in modern methods of agriculture and
animal husbandry but, for want of land, only limited progress could be made in
this direction.

Initially, payment of wages to prisoners was opposed on the ground that they
were already a burden on the State. Gradually, the need for providing some
motivation to prisoners was realized and it was considered that some monetary
reward would develop interest in work and provide the necessary incentive,
more so if the prisoner was allowed to use the earnings on himself or his family.
After independence, in some of the open prisons, prisoners are paid wages at
market rates out of which they pay to State their cost of maintenance. There is
now a growing realization that such liberal system of wages would provide
greater incentive for higher and better production.
Maharashtra was the first State to introduce in 1949 a very comprehensive system
of wages.
The Apex Court in State of Gujarat & another v. Hon’ble High Court of Gujarat
(AIR 1998 SC 3164) observed,
“Reformation and rehabilitation is basic policy of criminal law hence compulsory
manual labour from the prisoner is protected under Art. 23 of the Constitution.
Minimum wages must be paid to prisoners for their labour after deducting the
expenses incurred on them”.
Role of State Welfare Officers in Reformation of Prisoners:
In some States welfare officers have been appointed but their number is nominal.
They keep in touch with the prisoners and help them to adjust to their new
situation. They also help prisoners in maintaining family ties. They have thus a
very important role in the rehabilitation of offenders.
The shift of emphasis from deterrence and custody to reformation and re-
habilitation of offenders has necessitated recruitment for prison services of men
with humanity, integrity and a sense of social service. They have to have a stable
temperament, energy, tact and patience and ability to get on well with others.

**Reformation of Under-trials:
The under trial prisoners are rightly not obliged to work under the law but
remaining unemployed is not only against their own interest but also a national
waste. A policy of persuasion rather than coercion to engage under trial prisoners
in work was thus advocated and if they chose to work they were to be paid
wages. But in practice when they opt to work, they are employed on prison
services and are in lieu thereof given laboring diet and no wages.
Recently, the criminal law has provided that the period of detention as under trial
shall be counted towards the sentence of imprisonment. This will mitigate some
hardship but will not by itself encourage under trials to volunteer for work.
Quite a large number of under trial prisoners are detained in jails for long periods
as they are unable to afford fees of lawyers to defend them. In recent years the
government has given some attention to this problem and efforts are being made
to give free legal aid to the poor. If this facility is extended to a large number of
poor persons, it would not only in the long run result in the shortening of the
period of detention of under trials but might in some cases result in acquittal also.
**Reformation of Women Prisoners:
The women prisoners should be treated more generously and allowed to meet
their children frequently. This will keep tem mentally fit and respond favourably
to the treatment methods. A liberal correctional and educational programme
seems necessary in case of women delinquents. Particularly, the women, who fall
prey to sex offences, should be treated with sympathy and their illegitimate
children should be assured an upright life in the society. The idea of setting up
separate jails for women provides the free environment for providing special
treatment to them. The first women jail was established in Maharashtra at
Yarwada.
**Reformation of Juveniles Offenders:
For the reformation of juveniles, correctional institutions, like Special homes
(under the Juvenile Justice Act, 2000), certified schools and borstals are
constituted for providing the special treatment, medical care, education,
accommodation and vocational training to juveniles. Particularly, the States of
Gujarat, Maharashtra and Tamilnadu have done a commendable work in
direction of encouraging Borstal system through a well planned strategy. The
young offenders in these States are released on license or parole after they have
served at least two-thirds of commitment in a certified correctional school. These
States have also established After-care Associations and Children Aid Societies to
rehabilitate and reform the juvenile offenders.

**Programmes to boost the reformation tendencies in prisoners:

There are some programmes as initiated by various State governments for the
reforms of the prisoners as follows:

1-Educational Facilities
The prison administration has provided facilities for education of inmates by
getting affiliated with the Indira Gandhi National Open University and the
National Open School. There are also computer-training centres for the inmates.
The most important aspect of the education system in Jail is that educated
prisoners voluntarily teach less educated prisoners. An illiterate prisoner can look
forward to being literate if his stay is more than a week. Library facility has been
provided with the support of non-governmental organizations. Vocational classes
in English/ Hindi typing and Commercial Arts are conducted by Directorate of
Training & Technical Education and certificates are issued to successful students
.
2-Prisoners' Panchayats
Prisoners' bodies called “Panchayats” are constituted to help prison
administration in the field of education, vocational education, legal counselling,
kitchen, public works etc. Co-operative canteens at many prisons have been
running successfully and the profits made are used for the recreation and welfare
of prisoners. Prisoners are encouraged to participate in the management of their
welfare activities. Sense of responsibility is inculcated in the prisoners to prepare
them for social integration after release.

3-Vocational Training-
Training on pen manufacturing, book binding, manure making, screen printing,
envelope making, tailoring and cutting, shoe-making etc. are regularly provided
to the inmates. These training programmes have not only resulted in learning of
different trades but also provided monetary gains to the prisoners. For the post-
release rehabilitation of the prisoners, the Social Welfare Department of State
Govt. provides loans for setting up self-employed units
.
4-Yoga and Meditation-
The concept of introducing Yoga and meditation in the jail has created history
and has received wide accreditation by various national and international human
rights organization. For cleansing and disciplining mind, yoga and meditation
classes are conducted in a big way with the help of various voluntary
organizations. In the year 1994 Tihar Jail created a history by organizing a
Vipassana Meditation camp for more than one thousand prisoners.
**Prisoners' Grievance Cell
A prisoner grievance cell is working effectively under the charge of Petition
Officer and immediate remedial steps are taken on the complaints/ grievances of
the prisoners. Prisoners have been provided facilities to write complaints and
send them to senior officers either through fixed complaint boxes located at
convenient places or through the mobile petition box meant for petitions
addressed to D.G. / Addl. I.G. (Prisons), which is taken to all the enclosures
everyday. Jail Superintendent, Deputy Superintendent and even senior officers
have frequent meetings with the prisoners openly where prisoners' grievances are
listened carefully and solutions provided
.
**Community Participation
As a part of community participation in the reformation and social integration of
prisoners after release, a large number of respectable members of non-
governmental organisations, retired Major Generals, Eminent Psychiatrists,
Psychologists, Principals and Teachers of various educational institutions have
been conducting various activities in the jail. These programmes have very
sobering and positive impact on the psyche of the prisoners, who have been
shown the positive and constructive approach to life after interaction with them.
NGOs' participation is mainly concentrated in the field of education, vocation and
counselling. Apart from the formal education with the NGO support, the classes
in various languages like Urdu, Punjabi, German, French etc. are also held. Some
of the NGOs have trained selected prisoners on various trades and have been
bringing job for them against payment of remuneration. They also rehabilitate
these prisoners after their release.

**Periodical Visit of Medical Officers:

The reform initiatives taken up in Jail shows that force is always not necessary to
control and correct the prison inmates. The manner in which the prison
administration has taken up the system of rehabilitation, it becomes important for
other prisons of the nation to follow suit. The central as well as state governments
must also take the initiatives to take actions so that this system of rehabilitation is
encouraged, promoted and practiced.

**Role of Non-custodial Methods in Reformation of Prisoners:

The earlier penological approach held imprisonment, that is, custodial measures
to be the only way to curb crime. But the modern penological approach has
ushered in new forms of sentencing whereby the needs of the community are
balanced with the best interests of the accused: compensation, release on
admonition, probation, imposition of fines, community service is few such
techniques used. About 80 per cent of convicted prisoners are sent to jails for
short periods not exceeding three months, which only expose them to moral
contamination and result in economic hardship and distress to their dependents.
There is thus need for greater use of existing alternatives to imprisonment such as
warning, probation, suspension of sentence, fines, release on personal bond etc.,
and also for introducing other alternatives of a non-custodial nature such as
service to the community, payment of compensation to the victim of crime etc.
Such punishments will involve the positive cooperation of the offender which is
likely to be effective in his reformation. The addition of such punishment will add
a new dimension to the penal system which will emphasize the idea of reparation
to the community. Some of the main non-custodial measures are follows:
1-Probation:
The Central Correctional Bureau observed the year 1971 as “Probation Year” all
over the country. Probation seeks to socialize the criminal, by training him to take
up an earning activity and thus enables him to pick up those life-habits, which are
necessary for a law-abiding member of the community. This inculcates a sense of
self-sufficiency, self-control and self-confidence in him, which are undoubtedly
the essential attributes of a free-life. The Probation Officer would guide the
offender to rehabilitate himself and also try and wean him away from such
criminal tendencies. The probation system plays a very important role in the
2-Parole:
The parole system is an excellent way to allow prisoners to rehabilitate and get in
touch with the outside world. Parole is a legal sanction that lets a prisoner leave
the prison for a short duration, on the condition that she/he behaves
appropriately after release and reports back to the prison on termination of the
parole period. It must be noted that a parole is different from a “furlough”. While
parole is granted to a prisoner detained for any offence irrespective of the
duration of imprisonment, a furlough is only granted to prisoners facing long
sentences, five years or more. Furlough is matter of right, but parole is not.
However, an abuse of the system is a drag on the country. The urgent need of the
hour is for police officials to acknowledge that the parole system is being misused
and find ways to ensure that parole laws are properly enforced in prisons across
the country.

3-Open Prisons:

Taking inspiration from Anglo-American developments in the correctional field

of penology, the Indian penologists were convinced that India also cannot tackle
its crime problem by putting criminals in prison cells. The institution of open
prisons seems to be viable alternative to harsh imprisonment system. The whole
thrust in these open-prison institutions is to make sure that after release the
prisoners may not relapse into crimes and for this purpose they are given
incentives to live a normal life, work on fields or carry on occupation of their
choice and participate in games, sports or other recreational facilities. These are
the minimum-security prisons. In this liberal remissions are given to extent of 15
days in a month. The State of Uttar Pradesh was first to set up an open air camp
attached to Model Prison at Lucknow in 1949. Other States, like Andhra Pradesh,
Assam, Gujarat, Punjab, Kerala etc. are also set up open-air camps.

4-Remission:
Prisoners get remissions periodically for good conduct and work. Special
remissions are also given for specific special services. The sentences are reviewed
from time to time according to various rules and the prisoners are released before
time if they satisfy the prescribed conditions.
5-Work Release:
Work release is considered to be a very effective reformation tool in modern
criminal justice. In this method, the prisoner is allowed to work for pay in the
society for part time basis. This gives him an opportunity to mix up with the
society in a normal manner without any limitations. The control of the prison
authorities in, however not completely taken away since he has to work within
the permitted parameters and during non-working hours, he has to return the
concerned correctional institution. The correctional authorities collect his earnings
and which are paid to the prisoner on the completion of sentence. However it
differs from parole as inmates continues live in and subject to control of jail
authorities except the working hour. This helps the prisoner to adjust in the
situation at the work place after the release.
Conclusion:
Research into crime and the criminal is still in its infancy. The immediate need of
research is to evaluate the existing methods of treatment and to suggest new
approaches to the prevention of crime. By using the non-custodial measures
regarding the reformation of prisoners, it does not mean that the value of
custodial measures has been undermined. The application of non-custodial
measures only can be used by considering some facts, like nature of offence which
the prisoner has been committed and age of the prisoners. The value of probation,
open prisons, parole and home leave as reformatory measures need to be
established.
 Q.8 Explain, 'Law as an important mechanism of social
transformation.
Ans-
Introduction :-
Change is inevitable and a law which is static can prove highly fatal. Change
is a fact of human life. We may not be aware of it in our day-to-day
experience but it continues to affect us in one way or the other.
Law is framed as the standards and rules to be followed for the
peaceful living of the people in the society , while social change is the
alteration in the society which may have either good or bad impact in the
society.The relationship between the law and social change is discussed at a
wider aspect. There are various mechanisms being used by the legislation to
implement the rules in the society. It focuses on the way that the law has been
implemented and its responses or the effects in the society. Generally they put
forth the question that whether every law that had been enacted has brought
only the good effect and whether the protection of the country has been a
great concern for the legislation.
Social change happens because of a few calculates, for example,
changes innovation, demography and philosophy, changes in political life
and financial strategy and in legitimate standards or institutions.
For decades now law and society theorists have been preoccupied with
attempts to explain the relationship between legal and social change in the
context of development of legal institutions. They viewed the law both as an
independent and dependent and variable (cause and effect) in society and
emphasized the interdependence of the law with other social systems. In its
most concrete sense, social change means large numbers of people are
engaging in group activities and relationship that are different from those in
which they or their parents engaged in previously. Thus, social change means
modifications in the way people work. Rear a family, educate their children,
govern them, and seek ultimate meaning in life. In addition to law and social
change there are many other mechanisms of change, such as technology,
ideology, competition, conflict, political and economic factors, and structural
strains.
American Judge Benjamin Cordozo said that the "Last reason for law is
the welfare of society". Law ought not be definite but rather should be
transformable as per the prerequisite and need of the general public. The law
can't stay unchanging. The analyst is of the view that in a changing society
law should walk tuned in to the changed thoughts and philosophies. Thus to
 keep in pace with the innovative improvement, Law must be able for
identification of different violations and anticipation of the same moreover.
New acts like Information Technology Act has been brought, principles of
confirmation has been changed to perceive electronic exchange. Techniques
for expert viding cures have experienced enormous change with the
development of electronic business, digital wrongdoing and web.

Law as an instrument of social change. Law is the reflection of the will and wish
of the society. It is said that if you want to study any society, you have to study
the laws enacted by that society and you come to know whether the society is
developed or wild world. The law, though it is the product of the society is
responsible for the social \transformations. In fact, there are two modes of this
aspect. First is, “Law changing the society”, which means that the law of the land
compels the society to be changed according to it. And secondly is. “Society
changes the law”, as per its needs. It needs. It means law is made by the society
according to its requirement by its democratic institution i.e. Legislative or by
adopting custom and usage. When law changes the society it is the sign of
beginning of the development of the society. When society changes law it is the
sign of maturity of the society. We can cite the enthusiasm of the people in the
matter of ‘Nirbhaya’ where the commonest of the common was talking on how
the law must be, what must be the punishment etc. here this compelled the
government to consider the sentiments of the society and set up a commission to
give suggestions and untimely the criminal law amendment bill came into
existence. The change required in the society can be initiated by a single person
also and this has been proved in India right from Raja Ram Mohan Roy; to
Mahatma Phule, Mahatma Baseswar, and Mahatma Gandhi up to Anna Hazare!
Thus the demand takes root and shakes up the government to either reform the
existing laws or make new or even delete the existing unworthy laws.

For this we will have to cite examples for the history of India. When mahatma
Phule’s wife SavitribaiPhule actually started teaching in a school aimed only for
girls it was considered taboo, something not good and would be affecting the
society but this movement gradually became the source of law where the girls
could actually study and develop. Gradually the then society thought reluctantly
adopted this fact and started to send girls to school this is positive sign of
beginning of the development of the society. Ultimately the girls got into colleges
also. This was not only limited to the Hindu society, finally the Aligarh Muslim
college also had some seats for female students studying. But no dough the lamp
was lighted by the phule couple. This is the ‘Society changes the law’, But per its
need, rather demands. Whereas the law play important role in changing the
society too.
**Followinf are the various causes of law of social transformation

1-CONNECTION AMONGST LAW AND SOCIAL CHANGE:

The analyst is of the conclusion that law is the best instrument of social
change however now and again social changes progresses toward becoming
law. In India there are two principle foundations which rolls out
improvement in law, to be specific the lawmaking body where new laws are
sanctioned or alterations are done to the old demonstrations to suit the need
of great importance. The second foundation is our legal, where understanding
of the manage of land and law of land exist together. Law ought not be
definite but rather should change as per the prerequisite and need of the
general public emerging out of taking a break. It is this prescience at the top
of the priority list father and fundamental designer of the Indian Constitution
Dr.Bhima Rao Ambedkar embedded Art 368 to the constitution which gives
that "Any piece of the constitution might be revised by embracing suitable
strategy with the exception of obliterating the essential structure of the
constitution". It reflects the acknowledgment of the need of changing the law
even the rule that everyone must follow when circumstance warrants.

2-NEED OF CHANGING LAW:

Indian legal has for the most part been observed to be alive to the
requirements of social reasoning. The courts have brought and their new
ramifications and added new measurements to the law.As properly cited by
Justice P N Bhagwati "the judge mixes life blood into the dry International
Journal of Pure and Applied Mathematics Special Issue 4125 skeleton gave by
the legislature and makes a living being fitting and satisfactory to address the
issues of the general public". To demonstrate the instrumentality of law on
social change, it is important to consider some uncommon changes that have
occurred in India, since nothing is permanent except for change is lasting.
3-DISALLOWANCE OF CHILD MARRIAGE:
This routine with regards to tyke marriage was passionately found in Indian
culture crosswise over different religious groups. Extreme endeavors were
made by numerous reformers it turned worthless until the point that a law
was ordered. The Hindu Child Marriage Restraint Act was substituted by the
restriction of Child Marriage Act 2006. It introduction duced youngster
marriage restriction officer and expanded the energy of family court to choose
the issue under the Act. The demonstration likewise improved the discipline
upto two years thorough detainment or with fine up to Rs 2 lakhs or with
both.
 4-RIGHT TO FREE AND COMPULSORY EDUCATION:
In 1992 the good Supreme Court proclaimed the privilege to free and
mandatory instruction as a key right in the ambit of 'Ideal to Life' under Art
21 of the constitution. In 2002 the constitution was changed by embeddings
Article 21A to execute the privilege to free and mandatory instruction of each
kid matured between 6–14 years and embedded principal obligations of
parent and gatekeeper3 . In 2010 The Right of Children to Free and
Compulsory Education Act 2009 was placed in drive with impact from first
April to give free and mandatory instruction from 1 to eighth standard to
each tyke. Along these lines it can be seen that law genius texts the life of the
youngsters.
5-PUBLIC INTEREST LITIGATION:
The Honorable Supreme Court has received the more extensive approach of
the manage of locus standi to use the activity and arrangement people in
general vivacious people to move the courts to represent the general or
gathering interest despite the fact that they may not be specifically harmed in
their rights. The most imperative truth in regards to PIL is that of unwinding
the locus standi idea, any open vivacious per-child can approach the
established courts and could convey to the courts notice of obtrusive
infringement of Fundamental Rights of individuals who are not fit for being
moving toward the courts themselves. PIL is an idea went for expanding the
accessibility to equity and structures a piece of sacred law in India.
6-LAWS FOR RAPE VICTIMS:
The administration passed the statute on April 21 following across the board
dissents after endeavors by a few pioneers and supporters of the decision
Bharatiya Janata Party (BJP) to safeguard Hindu culprits of the kidnapping,
abuse, assault, and murder of a 8-year-old Muslim tyke in Jammu and
Kashmir state. In Uttar Pradesh state, experts not just neglected to capture a
BJP administrator blamed for assaulting a 17-year-old young lady, yet in
addition supposedly beat her dad to death in police guardianship.The
Criminal Law (Amendment) Act, 2013, included new classes of offenses with
respect to savagery against ladies and young ladies and made discipline more
stringent, including capital punishment for rehash guilty parties

** TYPES OF SOCIAL CHANGES - POSITIVE AND NEGATIVE -

Some changes lead to the accepted values of equality, liberty etc. They are
called positive changes. Negative changes have effect of complete
disorganization and positive changes, a complete revolution. (1) Changes in the
status of Harijans are a positive social change, as it takes us towards equality. (2)
Increase of crime and goondaism is a negative social change as it goes against the
accepted value of liberty.
1-Planned Changes and Unplanned Changes -
For example community development is a planned social change. Some
changes creep into society without our noticing them. Say the changes in
fashions.
Major changes affect a sizable number of people whereas minor changes
affect small group like families or small villages.

2-Changes in industrial Field:

 For consumer _protection - The Government of India started protecting
the interest of common consumer by introducing various measures. Prices
of certain essential items were fixed, fair price shops were started, it was
made compulsory for the manufacturer to declare the contents of the
items, especially the articles of human consumption and medicines.
Mention about dates of manufacturing and dates of expiry became
statutory. Special sanitary inspectors were appointed for this purpose.
o Standardisation was introduced through Indian standards
Institution (I.S.I. Mark)
o The Government also established consumer courts, and the
"Consumer protection Act." The consumer courts have given
decisions which have had a far reaching effect on consumerism.

 M.R.T.P. Act
o The two wheelers-was a monopoly of a few companies. Now the
market is flooded with two wheelers from different companies.

 International Market
o New economic changes -increase in international markets and
standardisation for those market is yet another factor to be
considered. Thus the producer not only has to think about local
market, but about national market and international markets.
Thrust on exports is be higher now.
 Environment Consciousness
o Environment protection movement is also a factor to be
remembered. People have become environment conscious.
Safety consciousness has also increased, because of
Environment Protection Movement. The Bhopal Gas Tragedy is
an eye opener for all producers and manufacturers.
 Technological Changes
o The technological developments are mainly in the non - social
environment. But when they are put to practice, they have different
impacts on the social environment also. They, should have the aim
of welfare of mankind and not the destruction of mankind.
3- AREAS OF TECHNOLOGICAL DEVELOPMENT
a) Area of Manufacturing
b) Area of Energy Production
c) Transportation
d) Speedy Networking of Communication
e) Bil - Technology

4-Equality of Opportunity:
The constitution has promised equality of opportunity to all citizens. The
barriers of caste, creed, and religion never came in the way of building a career
and achieving the status and standard of living associated with that career.
Freedom of occupation is a new value tied with equality of opportunity.
Right to property as given by constitution tries to remove some of the economic
disabilities of the harijans.

"It is through interpretation of statutes that the Supreme Court is trying

to grain the essence of economic democracy in capital labour nerves." The
court has brought to light the woes and miseries of the unorganised
labour.

5-Equal Pay for Equal Work:

Equal pay for equal work is a concept of democratic societies where men
and women have no distinction regarding their work conditions.
Today the Supreme Court of India is more pragmatic, helpful and alive to
the problems of poor than ever before.
In the field ofSocial changes the court has identified itself as the reformer,
initiator, promoter and harbinger of social constitutional philosophy of
democracy, socialism and secularism.

**Law as a product of Tradition and Culture.

Any attempt at describing society and culture in India must begin with three
assertions. One, though the political entity which is today known as India,
formally came into being only fifty years ago, the broader region which has
been the cradle for what is called Indian culture, society, and civilization, has
long been a loose, informal confederation joined by an undefinable similarity
of social and cultural customs and practices. It is therefore more accurate to
refer to it as a cultural unit rather than a political entity. Two, the physical
boundaries of this cultural unit have differed during various periods of
history. The boundaries were almost never identical to what the boundaries of
today's India are. The cultural unit in terms of geographical area was almost
always larger than what India is today. And lastly, India as it exists today is a
composite of multiple influences in a civilization which has continued to
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evolve for more than 5000 years. What may be termed as the culture of India
today is the outcome of, or merely the current stage in, a process of evolution
of a continually living and changing culture?

**Tradition / Custom as a source of law

While enacted law laid down in the statute book is what the law making
body ordains, customs / traditions are practices of society which are accepted by
the members of society and acted upon as such.
One of the important sources of law is custom. While custom is concerned
more with the sociological aspect as a source of law, enacted law is concerned
more with the legal aspect. It is in this sense that it is said that "Custom is to
society that Law is to the state."

While considering the development and evolution of law, accepted rules

that govern society, or a part thereof, are taken into account as sources of Law.
These rules and accepted practices that can be called custom have, therefore, an
important bearing on the development of law. Customs are rules accepted by
society and therefore, take their nature and colour from it.
If there exists in society an already established custom, with some
reasonable exceptions, the same will be followed by members of that society, and
therefore, the same makes for continuity and stability, which is one of the
essential attributes of law. Even if customs that have been adopted by society are
not perfect or ideal in themselves, the very fact that society has nurtured them
gives rise :o the expression that they will be followed as a result of practice.
Society, by means of custom, provides the material on which Law can
be based. In the formulation of laws, customs are adopted and incorporated.
Customs are often modified to be suitably adopted to the needs of the society.
In modern legislation, especially personal law, there are provisions by
whichcustoms which are even contrary to or in Consistent with the general
principles of enacted laws are expressly saved; for instance, the Hindu Adoption
and maintenance Act, 1956, provides that if there is a custom in a community
which enables the adoption of persons above the age of 15 years, persons of such
community may adopt a person above the age of 15 years, although the general
principle of the enacted law is that a person may validly be adopted only if such
person is below the age of 15 years.
While in modern times, the role of custom as a direct source of Law has
considerably dwindled, the importance of custom is still acknowledged as
enacted laws have some provisions which either protect customs even though
they may be at variance with the general law, or else the principles of the custom
have been incorporated into the law itself.
Before legal custom is accepted as a valid source of law, it is essential that
the custom involved must satisfy certain well accepted tests. These tests or
requisites to the validity of a legal custom may be summarised as follows.

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Reasonableness:
Before a custom is accepted and acted upon, it must satisfy the basic test
of being reasonable as that which is unreasonable or contrary to the accepted
sense of justice will not be acted upon. In this content, courts are quick to
consider whether customs pleaded offend rules of natural justice, equity and
good conscience.

Obligatory Nature:
If a custom is to be an appendage to the ordinary law, it must be clearly shown to
be of an obligatory nature and not merely one which is followed or not at one's
discretion or choice. Thus, we arrive at the concept of opinion and necessity, i.e.
whether it has necessary sanction of uniform and obligatory nature. Thus,
customary usage in a trade or business is not accepted as a valid custom if it is
not uniformly observed, and it has, so far as that trade or business is concerned,
no obligatory value.

Immemorial Antiquity:
It is absolutely essential to the validity of a legal custom that it has
immemorial antiquity. In other words, it is not sufficient to show that there is an
existence of a custom in a particular local area or community. It is equally
essential to establish that the same has existed since time immemorial and has
literally stood the test of time. In England, immemorial antiquity has been fixed at
the year 1989 and therefore, it is essential there to show that a particular valid
legal custom existed at least in that year or before.
In India, it is sufficient to show that it existed for a very long time and the
length of time will in each case depend on the facts and circumstances. It is also
vital to show not merely that it existed, but that it was what accepted and acted
upon. The necessity of custom being shown to exist from a very long time lies in
the fact that it must be distinguished from mere passing habits or usages.
Peaceable Enjoyment:
Apart from the other requisites, peaceable enjoyment in the absence of
disturbance or challenge is essential to a valid legal custom. This is required to
show unanimity in acceptance.
While considering the requisite of peaceable enjoyment, it may be noted
that legal custom of a particular community or custom of a local area cannot be
regarded as discontinued merely because some members or some inhabitants of
that area do not choose to follow it.

No Conflict with Enacted Law:

The normal rule is that if enacted law provides for one thing and
custom for something contrary to the same, the provisions of the enacted law
will prevail. In other words, the law will not recognize custom, which is
contrary to enacted law. The Hindu Adoption and Maintenance Act is an
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instance wherein custom is expressly saved in respect of some provisions.
However, it may be noted that if any person claims that existence of custom to
action derogation of the enacted law when the enacted law permits the same,
the burden will be heavily on such person who urges the custom. Lastly, it is a
principle of English law that unless of immemorial antiquity, a custom must be
consistent with the common law. Thus, by necessary implication, only
relatively recent customs are required to be consistent with common law as it
is an accepted maxim that "the common Law yields to immemorial usage."

Conclusion:
“Change is the law of nature what is to-day shall be different from
what it would be tomorrow. The social structure is subject to incessant
change… Society is an ever changing phenomenon, growing, decaying,
renewing and accommodating itself to changing conditions and suffering
vast modifications in the course of time. The word “Change” denotes a
difference in anything observed over some period of time.

It's as long as 2,000 years old. Codified 'laws' have been in place in India since at
least the time of the Dharma sutras (Manu's being the most famous one). In more
recent times, we have followed most of the laws left behind by our English rulers
and added quite a few to them -- forgetting to delete hundreds which are clearly
anachronistic and outdated.
With a long history of law making and an equally long history of
unwillingness to 'delete' or 'overwrite' laws but just stacking them up on top
of each other, we have a surfeit of laws in our country. So much so that it is
possible that any activity that a citizen undertakes at any point in time may
be interpreted as illegal.

social issues are interconnected as opposed to separated and law is a mirror to

know how people are identified with each other. Successful execution of law as
an instrument or gadget of social change should work in tandem with social and
social existence of individuals of India. Change of social framework as per the
need of the circumstances and as per the modes and mores of the people
involves need. A striking harmony between instru-attitude of law and folkways
and mores of the general population would truly clear route for genuine equity
in real life and in this manner prompts empowerment of the society

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 Q.9 Explain, 'Language as a divisive factor'. Briefly explain the constitution
guarantees to linguistic minorities.

Ans-

Introduction :-

The communication is essential for human beings. Interactions among people are

possible because of communication. Language facilitates to communicate. Thus

language forms a very important part in human life. Every human society has its,

own language. Indian society is a unique society. India is a land of linguistic

diversities. There are many languages in India. It is considered that Sanskrit is

the mother of all Indian languages. After independence the government felt that

the best way of reorganizing states was on the basis of language.

Language, as Samuel Johnson said, is the dress of thought; it is only the

instrument of science, and words are but the signs of ideas. When the ideas are
good and constructive, language promotes unity and cohesion, but when the
ideas are basically faulty, ill-conceived, deceitful and subversive, language has
the contrary effect.

Instead of promoting harmony and serving as the means of purposeful

communication between human beings, it begins to corrode the mind, feeding the
base instincts of man and encouraging tendencies that inevitably lead to divisive
and fissiparous tendencies. It then breaks up society into warring factions, each
fighting for its own linguistic rights and preferences.

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**Following are the Prelude of Linguistic States:

1-Administrative units:

Initially the country was divided into administrative units to A, B and C

Categories. This was found unsatisfactory and hence another category ‘D’ was

added. But people believed that this division negative the principle of equal

rights guaranteed to all citizens by the Constitution.

2-Linguistic states:

The problem of administrative reorganization was further complicated by the

growing demand for formation of states on the basis of linguistic political

pressure for establishing linguistic states. The government of India wasbound by

the public opinion for division of states on linguistic basis. In the Telugu area

communists set up the slogan “Andhra for Telugus”. Similarly Marathi speaking

people wanted a separate state. Gujarat is claimed a separate state for themselves.

Sikhs demanded a state for themselves. Thus in order to meet the demands of

public, states was reorganized on the basis of language.

3-225 distinct :

The languages of India are many. Linguistic surveys show a list of 225

distinct languages. Sardar VallabBahi Patel, played a significant role in

amalgamating the states into Union of India. In 1956 the states were reorganized

on the basis of language.

4-National language Hindi :

At present Hindi has been recognised as the national language. This has given
rise to a lot of fighting particularly in the southern part. Though the Constituent
Assembly accepted Hindi as the official language there was a prolonged
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controversy. Even at present Hindi is not very much accepted by the South
Indians.

5-Problems:

Linguism in India gained momentum during freedom struggle. The freedom

fighters felt that the British system of division of the country was not appropriate.

The idea of division of India on the basis of languages was considered as a better

strategy. But the reform of states on linguistic basis has created serious problems.

**Linguistic division of states can be analysed as follows:

1. Regionalism:

Linguism has promoted local identity. It has created distinctiveness among

people. The regional differences have come in the way of national integration.

2. Exploitation of people by Politicians:

Language has evoked psychological and emotional feelings among people.

Politicians are promoting the spread of only particular languages through

monetary inducements. They exploit the sentiments of people at the time of

election.

3. Erosion of national feeling:

Linguistic loyalty has come in the way of national integration. People are much

concerned about the regional gains, than the interest of the nation.

Thus interstate boundary dispute, river dispute have become common.

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4. Emergence of regional Political Parties:

Linguism has resulted in the formation of regional political parties. At the present

juncture these regional parties are playing a crucial role in the formation of

government at the centre and also at some states. This has caused the Problem of

political instability in the country. It has even increased the cost of election.

5. Demand for separate states:

Extreme sense of Linguism has caused linguistic conflicts. Such conflicts are quite

often supported by politicians. E.g: Demand for a separate state by people of

“north Karnataka” region.

6. Threat to sovereignty:

Linguism is posing a severe threat to the integrity of the country. On the basis of

language people have become more self centered without thinking of the

progress of the country. In Some states the regional language is being used even

for administrative purposes, which causes a major problem to people who do not

belong to that particular state.

**Recommendations of Sarkaria Commission:

In 1983, Sarkaria Commission was constituted to look in to the language problem

in India and suggest measures. The Commission was headed by R.S. Sarkaria.

The Commission made the following recommendations:

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1. Three language formula: It included the implementation of regional
language, Hindi and English at the school level education.

2. English was to be retained as the official language.

3. Reorganisation of states into administrative units.

4. Ban on Political parties and other organisations trying to promote Linguism.

A-Three language formula: It included the implementation of regional

language, Hindi and English at the school level education.

The Language and regionalism are also divisible factor in the society. The
constitution of India provides 22 languages specified. These languages protest
our culture but on the other hand divided the society into groups. Ex: Hindi
language in south. Every state and its people are duty bound to develop their
local language and for this purpose our constitution is not limiting the languages.

Ex:South covered by Telugu and Malayalam, East covered by Bengali and

Assames and North covered by Hindi and Punjabi west covered by Hindi,
Gujarati and Marathi and central India is speaking Hindi.

National language: The constitution and various other government documents

are purposely vague in defining such terms as national languages and official
languages and in distinguishing either one from officially adopted regional
languages.

States are free: to adopt their own language of administration and educational
instruction from among the country's officially recognized languages, the
Scheduled Languages. All citizens have the right to primary education in their
native tongue.

Sole official national language: As drafted, the constitution provided that Hindi
and English were to be the languages of communication for the central
government until 1965, when the switch to Hindi was mandated. The Official
Languages Act of 1963, pursuing this mandate, said that Hindi would become the
sole official national language in 1965. English, however, would continue as an
"associate additional official language."

Redrawing of State Boundaries: The Congress was committed to redrawing state

boundaries to correspond with linguistics. The States Reorganisation
Commission, which was formed in 1953 to study the problems involved in

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redrawing state boundaries, viewed language as an important, although by no
means the sole, factor. Other factors, such as economic viability and geographic
realities, had to be taken into account.

Minority in their traditional homeland: The violence that broke out in the state
of Assam in the early 1980s reflected the complexities of linguistic. (The state has
a significant number of Bengali-speaking Muslims. The Muslims came in
response to a British-initiated colonization plan to bring under cultivation land
left fallow by the Assamese. By the 1931 census, the Assamese not only had lost a
bulky portion of their land but also had become a disadvantaged minority in their
traditional homeland. They represented less than 33 percent of the total
population of Assam, and the Muslim immigrants (who accounted for roughly 25
percent of the population) dominated commerce and the government
bureaucracy.

**Linguistic Reorganization of States

A-Centre state relations:

The process of linguistic reorganization of states in India was far more prolonged
and divisive than the controversy over the official language of India and raised
more fundamental questions of centre state relations. The first step in the process
occurred in the aftermath of a major movement in the Andhra region of the
old Madras Presidency. Following the States Reorganization Act of 1956, the
boundaries of the southern states was reorganized in closer conformity with
traditional linguistic regions.

Ex: The bifurcation of Bombay province into the present state of Gujarat and
Maharashtrafollowed in 1960. In 1966, Punjab was reorganized and its
several parts distributed among three units: the core Punjabi Suba, the new
state of Haryana, and Himachal Pradesh. Several new states also have been
carved out in response to tribal demands in the North-Eastern region of the
country from time to time.

B-Conflict Internal boundaries:

Many Indian leaders proclaimed their goals after to be the establishment of a

strong state. Out of the conflict which developed between the central government
leaders, ssuccessive demands of leaders of language movements for
reorganization of the internal boundaries of the provinces.

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On August 15, 1947, India achieved independence, although the country was
immediately partitioned into two separate countries: Hindu India and Muslim
Pakistan. The following year, Mahatma Gandhi was assassinated by a Hindu
extremist, and the disappearance of the inspirational force behind independence
ushered in a new period in Indian history. Nonetheless, on January 26, 1950,
India adopted a new constitution that created a federal state known as the Indian
Union, a democratic lay republic and member of the British Commonwealth.

The Constitution adopted in 1950 stipulated that English and Hindi would be
used for the Union's official business for a period of fifteen years (art. 343(2) and
343(3)). After that time, Hindi was supposed to become the sole official language
of the Union. It proved impossible to replace English with Hindi, however,
because of strong opposition from the southern states, where Dravidian
languages were spoken. They felt that the federal government was trying to
impose Hindi across the country, including the south, and preferred to continue
using English, which they found more "acceptable" because, unlike Hindi, it was
not associated with any particular ethnic group. Later, the Official Languages
Act legally established Hindi and English as the languages used in Congress,
while leaving states and territories free to choose their own official languages.

Much, of course, depends upon the quality and content of a language; a living
language, Jawaharlal Nehru used to say, “is a throbbing, vital thing, ever
changing, ever growing and mirroring the people who speak and write it. It has

its roots in the masses, though its superstructure may represent the culture of a
few.” Both language and the faculty of speech are “immediate gifts of God”, and
language should do anything it is told, undertake any job required and not be a
stubborn one-idea thing.

Trouble arises when language and those who speak it develop a one- channel
mind. When language becomes an obsession and when some people think their
own language is the best in the world and must have primacy over others even if
such primacy is not in the national interest, there is endless discord, disharmony,
even violence and riots, supposedly in the name of a good cause. But no religion
and no language propagates the cult of violence and murder. Those who quarrel
and kill in the name of language or religion do a distinct disservice to both.

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Linguistic controversies on a national scale (mostly about the advisability of
adopting English or Hindi or both for education arts administration) and also in
the various regions (in Punjab, West Bengal, U.P. and elsewhere), have done
havoc in India.

The decision to create States on a linguistic basis, following prolonged agitations

in several part of the country, beginning with Andhra Pradesh for which there
was fast unto death more than three decades ago in the name of language and
linguistic States—separating the Telegu-speaking areas (to form Andhra Pradesh)
from the Tamil-speaking areas. As a result we had Linguistic States Commission
many of whose recommendations for splitting up certain regions into separate

and small States had a distinct! divisive sequel. The divisions thus effected had a
far-reaching effect an at times even cut at the roots of national integration.

**Language provisions in the Constitution of the Indian Union

A-Article 29 Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to
conserve the same.

(2) No citizen shall be denied admission into any educational institution

maintained by the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.

B-Article 30 Right of minorities to establish and administer educational

institutions

(1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.

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(1A) In making any law providing for the compulsory acquisition of any property
of an educational institution established and administered by a minority, referred
to in clause (1), the State shall ensure that the amount fixed by or determined
under such law for the acquisition of such property is such as would not restrict
or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions, discriminate
against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.

C-Article 120 Language to be used in Parliament

(1) Notwithstanding anything in Part XVII, but subject to the provisions of article
348 business in Parliament shall be transacted in Hindi or in English:

Provided that the Chairman of the Council of States or Speaker of the House of
the People, or person acting as such, as the case may be, may permit any member
who cannot adequately express himself in Hindi or in English to address the
House in his mother-tongue.

(2) Unless Parliament by law otherwise provides, this article shall, after the
expiration of a period of fifteen years from the commencement of this
Constitution, have effect as if the words "or in English" were omitted therefrom.

D-Article 120 Language to be used in Parliament

(1) Notwithstanding anything in Part XVII, but subject to the provisions of article
348 business in Parliament shall be transacted in Hindi or in English:

Provided that the Chairman of the Council of States or Speaker of the House of
the People, or person acting as such, as the case may be, may permit any member
who cannot adequately express himself in Hindi or in English to address the
House in his mother-tongue.

(2) Unless Parliament by law otherwise provides, this article shall, after the
expiration of a period of fifteen years from the commencement of this
Constitution, have effect as if the words "or in English" were omitted therefrom.

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E-Article 343 Official language of the Union

(1) The official language of the Union shall be Hindi in Devanagari script. The
form of numerals to be used for the official purposes of the Union shall be the
international form of Indian numerals.

(2) Notwithstanding anything in clause (1), for a period of fifteen years from the
commencement of this Constitution, the English language shall continue to be
used for all the official purposes of the Union for which it was being used
immediately before such commencement:

Provided that the President may, during the said period, by order authorise the
use of the Hindi language in addition to the English language and of the
Devanagari form of numerals in addition to the international form of Indian
numerals for any of the official purposes of the Union.

(3) Notwithstanding anything in this article, Parliament may by law provide for
the use, after the said period of fifteen years, of

(a) the English language, or

(b) the Devanagari form of numerals, for such purposes as may be specified in the
law.

F-Article 344 Commission and Committee of Parliament on official language

(1) The President shall, at the expiration of five years from the commencement of
this Constitution and thereafter at the expiration of ten years from such
commencement, by order constitute a Commission which shall consist of a
Chairman and such other members representing the different languages specified
in the Eighth Schedule as the President may appoint, and the order shall define
the procedure to be followed by the Commission.

(2) It shall be the duty of the Commission to make recommendations to the

President as to

(a) the progressive use of the Hindi language for the official purposes of the
Union;

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(b) restrictions on the use of the English language for all or any of the official
purposes of the Union;

(c) the language to be used for all or any of the purposes mentioned in article 348;

(d) the form of numerals to be used for any one or more specified purposes of the
Union;

(e) any other matter referred to the Commission by the President as regards the
official language of the Union and the language for communication between the
Union and a State or between one State and another and their use.

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Q.10 Adoption and adoption related problems?

Ans-

Introduction :-

Adoption benefits the orphans, homeless children and destitute youngsters as

well as childless couples. Adoption makes life meaningful for lone single adults
too as they gain a parent-child relationship. Adoption empowers a powerful
relationship between the child and its adopted parents even though they are not
related.
Section 2(2) of the Juvenile Justice Act of 2015 states that adoption is the process
through which the adopted child is permanently separated from his/her
biological parents and becomes the lawful child of his/her adoptive parents with
all the rights, privileges and responsibilities that are attached to a biological child.

Many Hindu groups practice different procedures for adoption across their
cultures and the idea of adoption can be traced back to ancient times through
adoption between different ethnic, caste, culture and lingual groups. Generally in
older days adoption was practised to get a male heir. While some adopt legally
giving full rights to the adopted child as that of the biological child, some just Act
as legal guardians until they attain the age of legal maturity. Different religious
faiths and lack of uniform civil code made adoption impossible across religions
and this had a derogate effect and unjust to destitute youngsters.

Different kinds of adoption

The Juvenile Justice (Care and Protection of Children) Act of 2015 read
with Adoption Regulation of 2017 has recognized five kinds of adoption namely:

 An abandoned, surrendered, destitute children adopted by an

unrelated person(s) living within the country.

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  An abandoned, surrendered, destitute children adopted by an
unrelated person(s) living outside the country.

 A related child by relatives living within the country.

 A related child by relatives living outside the country.

 Adoption of a child by step-parents within the country.

Illegal adoptions

When the adoption is done not per the adoption laws and procedure it is called as
illegal adoption. The illegally adopted child usually tends to suffer abuses. To
eradicate such abuses The Hague Adoption Convention was established.
Kidnapped or abducted children, illegally trafficked children, bonded labour
children and illicit or illegal Activities against children are resulting in an illegal
adoption. An illegal adoption may be mainly in two forms:

1. Illegal actions or misconduct from adoption agencies.

2. Black market adoptions.

Added to the above, mistakes made by adoption agencies, courts, and poorly
advised prospective parents may result in an illegal adoption.

How does adoption work?

Parents of children below 6 years who were unable provide to provide for them
may relinquish them to an adoption agency, or deserted and abandoned
youngsters whose parents or guardians cannot be traced may be declared eligible
for adoption by the child welfare committee. Alternatively, at times, children can
be declared eligible for adoption by the court through Juvenile welfare board.
This may be for the rehabilitation of delinquent youth.

Who can adopt?

Section 41 (6) Juvenile Justice (Care & Protection of Children) Act of 2000 states
that the court is empowered to allow a child to be given in adoption to the
following persons:
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  A person irrespective of his/her marital status,

 The parents to adopt a child of the same sex irrespective of the number
of existing biological sons or daughters, and

 Childless couples.

According to Section 57 of the Juvenile Justice (Care and Protection of Children)

Act of 2015 and Regulation 5 of Adoption Regulations of 2017.

General

 Prospective adoptive parents (PAP) are physically, mentally and

emotionally stable, financially capable and who do not have any life-
threatening medical conditions are eligible to adopt.

 The minimum age difference between the child and PAP(s) shall not be
less than twenty-five years.

Married Couple

 Married couples with at least two years of a stable marital relationship.

 Both spouses must consent for adoption in case of a married couple.

 The composite age of the married couple does not exceed a hundred
and ten years.

Single Parent

 Single persons with or without biological or adoptive children can

adopt provided they satisfy the following:

o A single female can adopt a child of any gender.

o A single male is not eligible to adopt a girl child.

o Age of a single parent does not exceed fifty-five years.

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 o Must have less than four children unless they are adopting a
child with special needs, a hard-to-place child, a relative’s
child or a step-child.

Capacity to Adopt for a male

For a male who wants to adopt he needs to satisfy the following conditions,

1. Should have a sound mind

2. If married consent of the wife is required.

Capacity to Adopt for a female

For a female who wants to adopt she need to satisfy the following conditions

1. Unmarried

2. Divorced

3. Widowed or

4. Her husband suffers from certain disabilities

a. Ceased to be a Hindu

b. Has renounced the World

c. Has been declared to be of unsound mind by the court.

Which child can be adopted?

A child can be adopted if she/he is:

 A child who has been declared by the child welfare committee (CWC)
as legally free for adoption. That child may be an orphan, abandoned or
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 surrendered (OAS) child or declared as such under the provisions and
rules of the Juvenile Justice (Care and Protection of children) Act of
2015.

 A child of blood relations (a child’s paternal uncle or aunt, a maternal

uncle or aunt or paternal and maternal grandparents are related
through bloodline and called blood relations)

 A child or children of the spouse from an earlier marriage. In this case,

the child or children is\are should be surrendered by the biological
parent(s) for adoption by the step-parent. [Section 38 and 56 of the
Juvenile Justice (Care and Protection of Children) Act of 2015

Who can give in Adoption?

Section 9 of the Hindu Adoption and Maintenance Act deals with who can give in
adoption,

Only with the consent of father and mother or guardian can give a child for
adoption.

The father alone can give in adoption if the mother,

 Has ceased to be Hindu.

 Renounced the world or

 Is of unsound mind.

 The mother alone can give in adoption if the father,

 Is dead.

 Completely renounced the world.

 Has ceased to be Hindu.

 Declared by the court as of unsound mind.

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Process of Adoption :-The adopting parents’ capacity to take care of the baby

should be validated by submitting the Central Adoption Resource Authority

(CARA) prescribed documents.

 A professional social employee or worker assess the mental and

physical ability of a prospective mother and father what want to adopt
a little one.

 Selecting or identifying a child for adoption by foster parents.

 Filing of docket petition at the relevant verification of the adoption

petition by the welfare agencies.

**The adoption law under different religions

Hindu law

According to Hindu beliefs a son is indispensable as he is required to perform last

rites to prevent the parents from hell. He is also important for the welfare of the
family as the wealth descends through the male law in India treats an adopted
child as equivalent to the biological child.

Under the old Hindu Law

 Adoption is strictly based on caste and Gotra.

 The orphan child cannot be adopted.

 Only a male could be adopted and a female child could not be adopted.

 Only the husband had the right to adopt and the wife’s consent or
dissent for adoption is not at all considered.

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As time flies the above said restrictions have changed. Gender biases in the
adoption process have been minimized and almost eliminated in today’s modern
society.

Under the modern Hindu Law,

 Any Hindu irrespective of gender can adopt.

 He or she should have attained age legal majority and should be of

sound mind.

 He or she should satisfy the rules and regulations enumerated by the

Hindu Adoption Maintenance Act of 1956.

Muslim Law

Kafala is the Islamic term for adoption. The Kafala is highly regulated with
stringent rules and regulations to preserve the biological lineage. Hence the
adoptive parent plays the role of a guardian rather than a conventional parent.
An adopted child cannot be attributed as the biological one and it is unlawful to
do so. This so not to confuse the blood lineage.

Rules for Kafala under Islamic law:

 The surname (family name) of the adopted child not changed to the
adoptive family but remains the same as that of Biological family.

 Normally the adopted child does inherit from the adoptive parents but
inherits from biological parents.

 The adoptive parents Act, merely as trustees of property or any other

wealth provided by the biological family and should not intermingle
the adopted child’s property or wealth with their own.

The adoptive parent’s role is very much valued and considered important under
Islamic law though they are considered as trustees and caretakers of the adopted
child, not as a full replacement for the biological parent.
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Kinship or ties of the family network is given utmost importance in Islam. This
kinship is very strong, vast and wide. Hence it is practically difficult to find a
completely abandoned or orphaned child without a single family member to
support except in case of war or natural calamity. It is also very difficult to adopt
the child outside the family, community or country. Islamic emphasis this to
safeguard the familial, cultural and religious roots.

In “Mohammed Allahadad Khan v. Muhammad Ismail” it was held that there is

nothing in the Mohammedan Law similar to adoption as recognized in the Hindu
System. Acknowledgement of paternity under Muslim Law is the nearest
approach to adoption.

However, an adoption can take place from an orphanage by obtaining permission

from the court under Guardians and Wards Act. Christians can take a child in
adoption under the Guardians and Wards Act, 1890 only under foster care. Once
a child under foster care becomes major, he is free to break away all his
connections from his adoptive parents.

Christian Law and Parsi Law

There is no civil law for Christians for adoption. Anyone who wants to adopt has
to obtain permission from the court. This is done under the Guardians and Wards
Act, 1890. Under this law, the adopted child is said to be under foster care and
legally free to break away from the adopted family once he/she becomes major
and does not have the legal right of inheritance. Hence the national commission
for women stressed for uniform civil law for adoption.

The property and estate of the deceased adoptive parents distributed among legal
heirs as the adopted child cannot be natural legal heir and property rights arise
from adoption as there is no statutory or law for governing adoptions for
Christians in India. Christians can adopt children under the resort to section 41 of
Juvenile Justice (care and protection) Act, 2006 along with the guidelines issued
by the concerned state government.

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What are the legislations that affect adoption in India?

The following three legislations govern adoption in India:

 The Hindu Adoption and Maintenance Act of 1956,

 The Guardians and Wards Act of 1890, and

 The Juvenile Justice (Care and Protection) Act of 2000, amended in 2015.

The Hindu Adoptions and Maintenance Act governs the adoption by Hindus,
Jains, Buddhists and Sikhs. Irrespective of faith and religion adoption can be done
under the provisions of the Juvenile Justice (Care & Protection of children) Act,
2015.

Hence the government is in the process of making the Juvenile Justice (Care &
Protection of children) Act, 2015 as the main legislation for governing adoption
India. For this disallow of Hindu Adoptions and upkeep Act, 1956 is planned by
the government. This is to have a proper uniform adoption process across
religions and cultures.

Guidelines under Juvenile Justice Act

The nodal agency for the adoption of a child is the Central Adoption Resource
Authority (CARA) a statutory body under the ministry of women and child
development laid down the guidelines to be followed for adoption. These
guidelines are included in the detailed provisions of the Juvenile Justice Act.

Adoption agencies, child care institutions and juvenile homes should be

registered with the nodal agency as per the Juvenile Justice Act. The Juvenile
Justice Act, 2015 supersedes all previous laws and amendments for adoption.

Juvenile Justice Act mandates that adoption of orphan surrendered or abandoned

child should be done through authorised agencies and as per the guidelines of
CARA. Any adoption violation of this is considered illegal.

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The Hindu adoption and maintenance act is the primary adoption law before the
enactment of the Juvenile Justice Act, 2000. It is not suitable for adoptions and not
supported by the Hague Convention on adoptions. It also does not provide for
the assessment of the mental and physical ability of potential adoptive parents
and lacks provisions for post-adoptive follow up by nodal or registered agencies.
This generally resulted in abuses on adopted children or us, ing them for illegal
purposes.

As other religions such as Christians, Muslims or Parsis don’t have a personal law
governing adoption they can only adopt under the Guardian and Ward Act. This
lacks the legal provision for an inheritance to the adopted child as it is considered
as foster care, not full adoption.

Hence to implement the articles of The Hague Convention the Juvenile Justice Act
of 2000 is envisioned and further, the rules and regulations for adoption across
various faith as well as inter-country are strengthened in the Juvenile Justice
(Care & Protection) Act, 2015.

Effect of Adoption

The adopted child cuts out all relationships with biological family and receives all
natural rights and obligations of a biological child of the adoptive parents.

Adoption is permanent in nature as per the Hindu Adoption and Maintenance

Act,. It is so that the adopted child cannot turn back to biological parents and it is
the same as adoptive parents cannot denounce the adopted child. It is
permanently binding on both parties.

Sections 12 to 14 deals with the laws concerned to adoptive parents and step-
parents. When the Husband has more than one wife and adoption is with the
consent of them then the who he married first will be the adoptive mother and
other wives are called stepmothers.

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The Supreme Court under section 5(1) of the Hindu Adoption and Maintenance
Act, held that the adoption by a widow also binds the deceased husband along
with all legal right to family title and inheritance in the case of Sawan Ram V.
Kalavati .

Gender Bias in Adoption

Conceptually the gender bias is removed in the adoption process by the

enactment of the Hindu adoption and maintenance Act, but in reality, a married
female cannot adopt even with the consent of the spouse unless when the
husband suffers some form of disability or deceased. This is a clear case of gender
bias in terms of adoption. The law gives the male a broader right while restricting
the female. This is clearly referred to in the case of Malti Roy Choudhury v.
Sudhindranath Majumdar.

In the case of Malti Roy Choudhury, the appellant, Malti had been adopted by the
deceased mother. After her mother’s death, she became the sole heiress and
applied for estates and properties left behind by her mother. There were a lot of
shreds of evidence which have been presented by the appellant like proof of the
ceremony of adoption, natural parents handing over the child to the adoptive
mother in the presence of her husband and the priest; acknowledgement through
school records; Malti being performed the funeral ceremony of her mother. But
however, the Court did not accept the argument and it was held that “under the
provisions of the Act, the husband alone can adopt, but here, it is an admitted
position that Malti was adopted by the mother Tripti not by the father and
thereby, rejected her appeal.

Thus we can understand that this law gives veto power in adoption exclusively to
males and only selective rights to females in the adoption process. To be on par
with the modern progress and gender equality some of the sections the Hindu
adoption and maintenance Act, need to be changed and should give equal status
to women.

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Inter-Country Adoption

Inter-country adoption is:

1. Legally adopting a child from a country other than one’s native

country.

2. Bringing that adopted child to the adoptive parent’s native country.

3. The adoption process for intra and inter-country are similar ie. transfer
of right over a child from a biological parent or guardian to the
prospective adoptive parent/s.

Lakshmi Kant Pandey’s public interest litigation case[3] is the most important in
the area of inter-country adoption. In 1982, a petition was filed under Article 32 of
the Constitution by advocate Lakshmi Kant Pandey alleging malpractices and
trafficking of children by social organizations and voluntary agencies that offer
Indian children for adoption overseas. The petition was filed on the basis of a
report in the foreign magazine called “The Mail”.

The petitioner accordingly sought relief restraining Indian based private agencies
“from carrying out the further activity of routing children for adoption abroad”
and directing the Government of India, the Indian Council of Child Welfare and
the Indian Council of Social Welfare to carry out their obligations in the matter of
adoption of Indian children by foreign parents.

By an order dated 6.2.1984 the Supreme Court laid down detailed principles and
norms to be followed for the adoption of children by the people overseas. Many
examples and references were cited while ‘discussing the issue, including the
statutory provisions and the international standards. While discussing the issue
the court said:

“When the parents of a child want to give it away in adoption or the child is
abandoned and it is considered necessary in the interest of the child to give it in
adoption, every effort must be made first to find adoptive parents for it within the
country because such adoption would steer clear of any problems of assimilation

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of the child in the family of the adoptive parents which might arise on account of
cultural, racial or linguistic differences in case of adoption of the child by foreign
parents. If it is not possible to find suitable adoptive parents for the child within
the country, it may become necessary to give the child in adoption to foreign
parents rather than allow the child to grow up in an orphanage or an institution
where it will have no family life and no love and affection of parents and quite
often, in the socio-economic conditions prevailing in the country, it might have to
lead the life of a destitute, half-clad, half-hungry and suffering from malnutrition
and illness”.

As per the Supreme Court of India ruling a central government recognised or

licensed child welfare agency must sponsor the adoption application to adopt a
child from a non-resident Indian or persons of Indian origin or foreigners. Added
to that a concerned department responsible for child welfare in the foreign
countries I which the proposed adoptive parent is a resident also sponsor such
application.

If it is done through a foreign agency then that should be recognised and

authorised by CARA and ministry for Social Justice in India for handling the
overseas adoption process. No direct inter-country applications are entertained
by any registered agency in India. Doing so is illegal and punishable under law.

Conclusion

Adoption in olden days yielded an heir to the adoptive parents and son to
perform religious rights. It is on the adoptive parents wish and benefits the
adoption happened in due course with the development of social justice, equality
of law and welfare of children. Adoption in modern days viewed from the point
of welfare and psychological development of the adopted child.

Both the adoptive parents and child are to benefit from adoption. The prospective
adoptive parent gains a son or daughter to show their love and nurture them to
their heart’s content. The adopted child gets a supportive and loving parent who
replaces the loss of the biological parent. Anything less than this result in the
failure of the adoption concept especially for the child.

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Q.11 Industrial Reforms

Ans-
Introduction :-
Industrial policy is a comprehensive package of policy measures which
covers various issues connected with different industrial enterprises of the
country. This policy is essential for devising various procedures, principles,
rules and regulations for controlling such industrial enterprises of the
country.
The pace, pattern and structure of industrialization in a country is highly
influenced by its industrial policy. The industrial policy consists of a philosophy

to determine the pattern of industrial development of country, procedures,

principles, rules and regulations for the control of industries.

The policy also incorporates fiscal policy, monetary policy, the tariff policy,
labour policy and the Government’s attitude towards the public and private

sectors of the country. Before independence there was no proper policy for
determining industrial development of the country. It is only after independence
a beginning has been made in this direction.

Industrial Policy, 1948:

On April 6, 1948, the Government of India adopted the industrial policy
resolutions for accelerating the industrial development of the country. The policy
resolution contemplated a mixed economy which included both the public sector
as well as private sector on the industrial front.

This policy divided the various Indian industries into four broad categories:
(a) In this first category of exclusive state monopoly, the manufacture of arms and

ammunition, the production and control of atomic energy and ownership and
management of railway transport were included.

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(b) The second category included coal, iron and steel, aircraft manufacture, ship-

building, manufacture of telephone, telegraphs and wireless sets and mineral oil
industries. In this category all new factories would be owned and managed by
the public sector although the existing units of such industries would continue to
be run by the private industrial establishments. Thus, the State would have the
exclusive right in setting up of new undertaking included in this category.
(c) The third category of industries included 20 important large scale and basic

industries which were kept reserved for the time being to the private sector
although the state reserves the right to plan, regulate and control as and when
necessary. In this category various industries such as salt, automobiles, tractors,
prime movers, heavy chemical, electric engineering, machine tools, fertilizers,
electro-chemical industries, rubber manufactures, power and industrial alcohol,
non-metals, cotton and woolen textiles, sugar, paper, cement, newsprint, air and
sea transport, minerals and industries related to defence were included.
(d) The fourth category comprised of the ‘remainder of the industrial field’ which

was kept open to private sector including both individual as well as co-operative.
In this industrial policy, special emphasis was laid on the development of cottage
and small scale industries. Besides proper steps were taken to design a suitable
tariff policy, taxation policy and also for maintaining sound industrial relation
between management and labour.

Regarding foreign capital, the industrial policy recognized the need for security
and participation of foreign capital and enterprise especially in respect of
industrial technique and knowledge for enhancing the pace of industrialization in
the country. But the policy was to lay down the foundation of mixed economy
with the participation of both public and private sector for accelerating the pace
of industrial development in the country.

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Industrial Policy Resolution, 1956:
Alter the proclamation of industrial policy, 1948, Indian economy had to face a
series of economic and political changes which necessitated the formulation of a
fresh industrial policy for the country. In the mean time, the First Five Year Plan
was completed and socialistic pattern of society was accepted as the major
objective of the country’s social and economic policy. Thus, on April 30, 1956, a
second Industrial Policy Resolution was adopted in India replacing the policy
Resolution of 1948.

**Following are some of the important provisions of the 1956 policy:

(i) New Classification of Industries:
In this new policy, industries were re-classified into three schedules.

These schedules were:

(a) Schedule A:
In the schedule A, seventeen industries were included and the future
developments of these industries were to be the exclusive responsibility of the
State. These industries include arms and ammunition, atomic energy, iron and
steel, heavy castings and forgings of iron and steel, heavy machinery, heavy

electrical industries, coal, mineral oil, mining; iron ore and other important
minerals like, copper, lead and zinc; railway transport, aircraft, ship building,
telephone, telegraph and wireless equipment, and generation and distribution of
electricity.

(b) Schedule B:
In this schedule 12 industries were placed which will be progressively state-
owned. In this schedule, the state would gradually set up new units and the
private industries would also be expected to supplement the effort of the state in
this regard.

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These twelve industries include aluminum, other mining industries and other
non-ferrous metals not included in the schedule A, machine tools, Ferro alloys
and tool, steels, fertilizers, the chemical industry, antibiotics and other essential
drugs, synthetic rubber, carbonization of coal, chemical pulp, road transport and
sea transport.

(c) Schedule C:
In this schedule all the remaining industries were included and their future
development would be left to the initiative and enterprise of the private sector.
The state would facilitate and encourage the development of all these industries
in the private sector as per the programmes finalized in the Five Year Plans of the

country. These industries were controlled by the state in terms of the Industries
(Development and Regulation) Act of 1951 and other relevant legislations.

(ii) No water-tight Classification:

It is important to note that the grouping of industries into three schedules was not
placed in water-tight compartments. As these classifications remained open, thus
the State may start any industry even in schedule C and similarly privately
owned units may be permitted to establish industrial units even in schedule A in
appropriate cases.

(iii) Fair and Non-discriminatory Treatment for the Private Sector:

The State would facilitate and encourage the private sector industries by ensuring
infrastructural facilities like power, transport and other services and provide non-
discriminatory treatment to both public and private owned units.

(iv) Encouraging Cottage and Small Scale Industries:

The State would continue to support cottage, village and small scale industries by
restricting the volume of production in the large scale industrial units, by

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imposing differential taxation or by direct subsidies and would concentrate to
improve their competitive strength by modernizing the techniques of production.

(v) Removal of Regional Disparities:

In order to secure a balanced development, the policy emphasized to remove
regional disparities in respect of industrial development and tries to attain higher
standard of living for the people of the country.

(vi) Amenities for Labour:

The Resolution recognized the importance of labour and recommended to
associate the workers and technicians with management progressively. The
policy stressed the need for improving the living and working conditions of
workers and also to raise their standard of efficiency.

(vii) Attitude towards Foreign Capital:

Regarding the foreign capital the resolution maintained the same attitude as
enunciated in our Industrial Policy, 1948. The policy recognized the importance
of foreign capital and has given clear assurance for the safety and facilities for
investment of the foreign investors.

Thus the Industrial Policy Resolution, 1956 has made a clear-cut provision for the
expansion of both public sector and private sector enterprises in the country in
co-ordinated manner with high degree of flexibility in its policies. Further, the
policy resulted in the rapid expansion of the public sector in basic and heavy
industries of the country.

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Industrial Policy Statement, 1977:
In December 1977, the Janata Government announced its New Industrial Policy
through a statement in the Parliament.

**Following are the main elements of the new policy:

1. Development of Small Scale Industrial Sector:

The main thrust of the new policy was the effective promotion of cottage and
small industries widely dispersed in rural areas and small towns. In this policy
the small sector was classified into three groups—cottage and household sector,
tiny sector and small scale industries.

This policy suggested following measures for the promotion of small scale and

cottage industries of the country:

(a) Expanding the list of items from 180 to 807 items.
(b) Establishment of ‘District Industries Centre’ for the development of cottage

and small scale industries.

(c) Revamping Khadi and Village Industries Commission.
(d) Special arrangement for widespread application of suitable technology for

small scale and village industries.

2. Areas for Large Scale Sector:

The 1977 Industrial Policy prescribed the following areas for large scale
industrial sector:
(a) Basic industries,

(b) Capital goods industries,

(c) High technology industries and

(d) Other industries outside the list of reserved items for the small scale sector.

3. Big Business Houses:

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The 1977 Industrial Policy restricts the scope of large business houses so that no
unit of the same business group acquired a dominant and monopolistic position
in market.

4. Role of the Public Sector:

The new policy prescribed the expansion of the role of public sector especially in
respect of strategic goods of basic nature. The public sector was also encouraged
to develop ancillary industries and to transfer its expertise in technology and
management to small scale and cottage industry sectors.

5. Promotion of Technological Self-reliance through the inflow of technology in

sophisticated areas is another feature of the 1977 policy.

6. The policy recommended a consistent line of approach towards sick industrial

units of the country.

7. Management-labour Relations:
The new policy of 1977 put emphasis on reducing the occurrence of labour
unrest. The Government encouraged the worker’s participation in management
from shop floor level to board level. But the industrial Policy 1977, is subjected to

serious criticism as there was absence of effective measures to curb the dominant
position of large scale units and the policy did not envisage any socioeconomic
transformation of the economy for curbing the role of big business houses and
multinationals.

Industrial Policy of 1980:

On 3rd July, 1980 the Congress (I) Government announced its new industrial
policy. This new policy seeks to promote the concept of economic federation, to
raise the efficiency of public sector and to reverse trend of industrial production
of the past three years and reaffirms its faith in the Monopolies and Restrictive

Trade Practices (MRTP) Act and the Foreign Exchange Regulation Act (FERA).
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While preparing this policy statement, the 1956 resolution was considered as its
basis.

Socio-economic Objectives of the Policy:

The industrial policy statement, 1980 has laid down the following objectives:
(i) Optimum utilization of installed capacity;
(ii) Maximizing production and to achieve higher productivity and higher

employment generation;
(iii) Correction of regional imbalance through a preferential development of

industrially backward areas;

(iv) Strengthening of the agricultural base according to a preferential treatment to

agro-based industries and promoting optimum inter-sectoral relationship;

(v) Faster promotion of export-oriented and import substitution industries;

(vi) Promoting economic federalism with an equitable spread of investment over

small but growing unit in the rural as well as urban areas; and

(vii) Revival of the economy by removing the infrastructural gaps.

Policy Measures:
Besides in this industrial policy, 1980 the following policy measures were
proposed to normalize the situation and to put the economy again on its feet:
1. Effective Operational System of Management of the Public Sector:
The new policy reaffirmed its faith in the public sector in-spite of having erosion
of faith in it in recent years. Thus, the Government decided to launch a time
bound programme in order to revive the efficiency of public sector undertakings.

2. Integrating Industrial Development in the Private Sector by Promoting the

Concept of Economic Federalism:

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The policy statements state that for integrated industrial development, it would
promote the concept of economic federalism with setting up of a few nucleus
plants in each district, identified as industrially backward district, to generate as
many ancillaries and small and cottage units as possible.

3. Nucleus Plants:
The new policy has introduced the concept of nucleus plants which would
concentrate on assembling the products of the ancillary units falling within its
orbit, on producing the inputs needed by a large number of smaller units and
making adequate marketing arrangements. The nucleus plant would also make
provision for upgrading the technology of small units.

4. Redefining Small Units:

In view of the sufficient changes in the price level, price escalation and to
develop the cottage and small scale industries, the Government decided:
(a) To raise the limit of investment in respect of tiny units from Rs. 1 lakh to Rs. 2
lakh;

(b) To raise the investment limits in case of small scale units from Rs. 10 lakh to
Rs. 20 lakh; and

(c) To raise the investment limit in case of ancillary units from Rs. 15 lakh to Rs.
25 lakh.

Thus, the upward revision of investment limits would eliminate the tendency to
circumvent the present limit by under-estimating the value of machinery and
equipment, falsification of accounts or resort to ‘benami’ units. This would also
help the qualified entrepreneurs in order to set up genuine small scale units and
also facilitate the long overdue modernization of the existing small scale units.

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Further, the new policy also provides other facilities like financial support to
small units, buffer stocks of critical inputs for small units, marketing support and
reservation of items for small scale industries as a whole.

5. Promotion of Industries in the Rural Areas:

The policy statement emphasized the necessity to promote suitable industries in
the rural areas in order to generate bigger employment and for raising per capita
income of the rural people without disturbing ecological balance in rural areas. In
this respect the development of handloom, handicrafts and khadi and village
industries would be given greater attention.

6. Removal of Regional Imbalance:

The policy encourages dispersal of industry and setting up of industrial units in
industrially backward areas for making necessary correction in regional
imbalances.

7. Liberalisation of Existing Capacities:

The policy statement gave recognition to the excess productive capacity as a
result of replacement and modernization, and regularized these unauthorized
excess capacities on selective basis.

8. Automatic Expansion:
The policy also gave concession to the large scale units about their extension and
simplification for automatic expansion until now permitted to 15 industries.

9. Industrial Sickness and State Policy:

The policy statement also proposed to introduce “a checklist” to serve as ‘early
warning system’ for identifying symptoms of sickness and also to take stern
measures about deliberate mismanagement and financial improprieties leading to

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sickness. In exceptional cases only the management of sick units would be taken
over on public interests.

Industrial Licensing Policy:

Industries (Development and Regulation) Act, 1951:

The Industries (Development and Regulation) Act, 1951 was passed by the
Parliament in October 1951 in order to control and regulate the process of
industrial development.

The main objectives of the Act were:

(a) To regulate industrial investment and production as per priorities and targets
of plan;

(b) To protect small industries from large industries;

(c) To prevent growth of monopoly and concentration of ownerships; and

(d) To attain balanced regional development.

The following are some of the important provisions of the Act which can be
broadly classified as restrictive and reformative provisions:
1. Restrictive provisions:
In order to check the unfair practices adopted by industries the following
restrictive provisions were made:
(a) Registration and licensing:
Any new industry, whether under private sector and public sector, included in
the schedule of this Act must be registered during its establishment. Extension of
the existing units also require government permission.

(b) Enquiry of industries:

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The Government has the responsibility to make necessary enquiry against the
unsatisfactory performances of any industry whose production has fallen or
which is using resources of national importance or which is harming the interests
of shareholders and consumers.

(c) Cancellation:
Another restrictive provision is that the government may cancel the registration
and license offered to any industry if it has submitted wrong information and
failed to set up the project within the stipulated period.

2. Reformative Provisions:
In order to make necessary reforms in those industries, the following
reformative measures were undertaken:
(a) Direct regulation or control by government:
Provision had been made to issue directions for reforms of those industries which
were showing unsatisfactory performances. In the extreme case the government
might take over the management and control of such unit.

(b) Control on price and supply:

Provision was made through this Act to empower the government to regulate
and control the prices, distribution and supply of the product produced by any
industrial unit included in the schedule of the Act.

(c) Constructive measures:

In order to raise mutual confidence and to elicit co-operation from the workers,
the government established a Central Advisory Council along with a number of
Development Councils for different products. Initially 37 industries were brought
under the purview of the Act and later on their number was raised to 70.
Although initially capital investment limit was fixed at Rs. 1 lakh but later on it
was decided that any industrial units employing less than 100 workers and

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maintaining fixed capital less than Rs. 10 lakh should not be brought under the
purview of the Act.

This investment exemption limit was later raised to Rs. 25 lakh in 1963, Rs. 1 crore
in 1970, Rs. 3 crore in 1978 and then to Rs. 5 crore. In 1988-89, the government
announced the industrial de-licensing package in which the system of licensing
was abolished for those industries set up in backward areas having investment
less than Rs. 50 crore and for those industries located in non-backward areas.

Industrial Licensing Policy, 1970: Dutt Committee Report:

Considering the loopholes of licensing policy as mentioned by Hazari Report, the
government appointed an Industrial Licensing Policy Enquiry Committee in July
1967 in order to enquire the working of the licensing system, under the
chairmanship of Mr. Subimal Dutt. The Committee submitted its report in July,
1969.

Dutt Committee Recommendations:

The Dutt Committee suggested a number of measures for improving the licensing
system. The Committee advocated for the establishment of a ‘Core sector’
consisting of industries of basic, critical and strategic importance to the economy
and the industrial houses should be restricted to this core sector only.

The committee felt that it would check the infiltration and proliferation of large
industrial houses in large number of products and industries and this would also

limit them to a restricted area of lumpy investment. The Committee also

advocated for the setting up of a joint sector.

The committee also recommended that the government should take an “active
part in direction and control” of the aided industrial projects so as to ensure their
management as per the overall policies laid down by the government.

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Industrial Licensing Policy, 1970:
As per the recommendations of Dutt. Committee, the Government of India
announced a new Industrial Licensing Policy in February 1970.

Following are some of the basic features of this policy:

1. A ‘core sector’ was introduced which consisted of basic industries and

industries related to defence requirements and of critical and strategic
importance.

The core sector included industries divided into 9 sectors which were consisted
of:
(i) Agricultural inputs,

(ii) Iron and steel,

(iii) Non-ferrous metals,

(iv) Petroleum,

(v) Cooking coal,

(vi) Heavy industry machinery

(vii) Ship building and building of dredgers,

(viii) Newsprint and

(ix) Electronics.

Industries which were earlier reserved for public sector in the 1956 policy would
continue to be reserved and in other sectors, large industrial house and foreign
companies would be allowed to develop.

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2. The 1970 Licensing Policy mentioned about another sectors as ‘heavy
investment sector’ which included all those industries having investment more
than Rs. 5 crore. Excluding all those areas restricted for public sector all other
areas of this sector would be opened to private sector.

This was no doubt a huge concession to the large houses and foreign companies
which were playing a limited role in the core sector only. This policy opened up
the possibilities for the large houses to enter into various luxury industries.

3. The ‘middle sector’ consisting of all those industries having investment

between Rs. 1 crore and Rs. 5 crore, would be considerably liberalized and their
licensing procedures would be simplified to a large extent.

4. Industries having investment less than Rs. 1 crore were placed in the
‘Unlicensed sector’ where to set up any industry no license henceforth would be
required.

5. This licensing policy (1970) accepted the concept of joint sector as suggested by
Dutt Committee. It is mentioned that while sanctioning loans or subscribing to
debentures in future, all public financial institutions should have the option to
convert them into equity within the definite period of time.

In respect of small scale sector, the existing policy of reservation was continued
and the area of such reservation was extended.

Industrial Licensing Policy 1973:

In February, 1973, another industrial Licensing Policy statement was adopted in

which a new definition of ‘large industrial houses’ was adopted. In 1973 policy
this definition for large houses was adopted as per the MRTP Act in which any
industrial establishment having assets more than Rs. 20 crore would be called

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large houses as against the limit of Rs. 35 crore permitted earlier by 1970 licensing
policy.

In this new policy two previous recommendations, of 1970 policy i.e., exemption
limit from licensing (raised from Rs. 25 lakh to Rs. 1 crore in 1970) and the joint
sector were maintained. This 1973 licensing policy also expanded the area of core
sector which would now include 19 industry groups as compared to 9 industries
permitted in 1970 policy.

This was major concession to large industrial houses as the sector now included
“low priority but highly profitable industries like man-made fibres and synthetic
detergents”. It was claimed that the new policy would net in more large
industrial houses. But the claim was not justified.

In fact, the net coverage of large houses shrunk due to difficulty in establishing
inter-connection and the vague and the loose criteria provided in Section 2(g) of
the MRTP Act for such purpose. The asset limit of MRTP companies was later
raised to Rs. 100 crore in 1985 as compared to previous limit of Rs. 20 crore.

In March 1978, another important policy statement was announced which carried

the liberalisation more further. In this policy, the exemption limit for licensing
was raised from Rs. 1 crore to Rs. 3 crore which was again raised to Rs. 5 crore
subsequently. In 1988-89, this exemption limit of licensing was further raised to
Rs. 50 crore for backward areas and Rs. 55 crore for non-backward areas along
with certain restrictions and conditions.

Industrial Policy Development in Eighties—Liberalisation Wave:

During eighties, various steps were taken by the Government for liberalizing the
industrial policy of the country.

These steps were as follows:

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1. Exemption from Licensing:
In order to liberalise the industries, the exemption limit of licensing was
continuously enhanced from non-MRTP and non-FERA companies. The
exemption limit which was Rs. 3 crores in 1978, gradually enhanced to Rs. 5
crores in 1983 and then substantially to Rs. 55 crores for those projects to be
located in non-backward areas and to Rs. 50 crores for those projects located in
backward areas in 1988-89.

2. Relaxation to MRTP and FERA Companies:

The government made provision for various relaxations to those companies
under MRTP Act (Monopolies and Restrictive Trade Practices Act) and FERA

(Foreign Exchange Regulation Act) in order to expand industrial production and

also to promote exports.

These relaxations include:

(a) Raising the limit of MRTP companies from Rs. 20 crores to Rs. 100 crores in
March, 1985;

(b) Allowing the MRTP to set up new capacities in those industries of high
national importance and with import substitution potential or using sophisticated
technology without the approval to government in 1983 (May);

(c) Giving permission for unrestricted entry of large industrial houses and
companies governed by FERA in 21 high technology items of manufacture in

December, 1985. Accordingly, large industrial houses under the purview of

MRTP Act and FERA companies were given permission to freely undertake the
manufactures of 83 items.

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(d) Specifying a list of 33 broad group of industries under Appendix I where
MRTP and FERA companies were given permission to set up capacities provided
these items are not in the reserved list of small scale sector or public sectors;

(e) Making provision for various other concessions such as regularisation of

excess capacity and capacity re-endorsement, special facilities to set up industries
in backward areas etc. to MRTP and FERA companies.

3. Delicensing:
In order to encourage industries, the government delicensed 28 broad categories
of industries and 82 bulk drug and their formulations. These industries would
now require any registration with the Secretariat for Industrial Approval and
thus no licence had to be obtained by these industries under the Industries
(Development and Regulation) Act if these industries do not fall within the
purview of MRTP Act or FERA, do not produce articles reserved for small scale
industries and the undertaking is not located in an urban area. In 1989-90,
provision has been made for delicensing of some more industries.

4. Re-endorsement of Capacity:
In order to achieve maximum capacity utilisation, in April 1982, the scheme of
capacity re-endorsement was announced. Again in 1986, this scheme was
liberalised further to permit those undertakings in availing such facility which
achieved 80 per cent capacity utilization (previously 94 per cent). The industries
which were not permitted for automatic re-endorsement of capacity was reduced
from 77 to 26.

5. Broad Banding Industries:

In 1984, the scheme of broad banding of industries was introduced in order to
classify these industries into broad categories. This was done to enable the

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producers to change their product-mix rapidly in order to match the changing
demand pattern.

6. Minimum Economic Scales of Operation:

In 1986 the government introduced the minimum economic scales of operation in
order to encourage relations of economies of scale through the expansion of its
installed capacities. Till 1989, minimum economic capacities (MECs) were
specified gradually for 108 industries and in 1989-90 some more industries were
specified under MECs.

7. Development of Backward Areas:

In order to develop backward areas, the government extended the scheme of
delicensing in March 1986 to MRTP or FERA Companies engaged in 20 industries
in Appendix I for their location in backward areas declared centrally. Later on the
scheme was extended to 49 industries.

Again in 1988- 89, the government set up 100 grown centres throughout the
country to provide infrastructural facilities to these backward areas. Moreover, in
1988 income tax reliefs were announced for promoting industrialisation of
backward areas.

Accordingly, new industries established in notified backward areas were entitled

to income tax relief under Section 80HH of I.T. Act by way of 20 per cent
deduction from profits for a period of 10 years. Again under Section 80- I of Act,

all new industrial undertakings were entitled to income tax relief by way of 25
per cent deduction of the profits for a period of 8 years.

8. Incentives for Export Production:

In order to promote exports, the government announced various concessions in
its industrial policy and export (Exim) policy. Again, all 100 per cent export-

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oriented industries were exempted from Section 21 and 22 of the Act which were
set in Free-Trade Zones. Some more industries were identified from export angle
which were permitted 5 per cent automatic growth rate annually over and above
their normal capacity.

9. Enhancement of Investment of Small Scale and Ancillary Units:

The investment limits for small scale units and ancillary units which was Rs. 20
lakhs and 25 lakhs respectively as per 1980 policy statement, gradually enhanced
to Rs. 35 lakhs and Rs. 45 lakhs respectively in 1985 and Rs. 2 lakhs for tiny units.

In 1991, these limits were again raised to Rs. 60 lakhs and Rs. 75 lakhs for both the
small scale and ancillary units respectively. Moreover about 200 times which
were earlier reserved, were completely de-reserved and kept open for large and
medium scale sector.

New Industrial Policy, 1991 and Economic Reforms:

The Congress (I) led by Narasimha Rao Government has announced its new
industrial policy on July 24, 1991. In line with the liberalisation move introduced
during the 1980s, the new policy radically liberalized the industrial policy itself
and de-regulates the industrial sector substantially.

Objectives:
The prime objectives of the new industrial policy are to “unshakle the Indian
industrial economy from the cobwebs of unnecessary bureaucratic controls”, and
to build on the gains already experienced, to correct the distortions or weakness
involved in the system, to introduce liberalisation measures in order to integrate
Indian economy with world economy, to abolish restrictions on direct foreign
investment, to liberate the indigenous enterprise from the restrictions of MRTP
Act, to maintain a sustained growth in productivity and employment and also to
achieve international competitiveness. Moreover, the policy also made provision

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for reducing the load of public sector enterprises showing either low rate of
return or incurring losses over the year.

Thus to fulfill these objectives, the government introduced a series of

initiatives in the new industrial policy in the following areas:
1. Abolition of Industrial Licensing:
In order to liberalise the economy and to bring transparency in the policy, the
new industrial policy has abolished the system of industrial licensing for all
industrial undertaking, irrespective of the level of investment, except for a short
list of industries related to security and strategic concerns, social reasons,
hazardous chemicals and overriding environmental concerns and items of elitist

consumption. As per Annexure II of the policy there are only 18 industries for
which licensing is compulsory.

These include:
(1) Coal and lignite;

(2) Petroleum (other than crude) and its distillation products;

(3) Distillation and brewing of alcoholic drinks;

(4) Sugar;

(5) Animal fat and oils;

(6) Cigars and Cigarettes of tobacco and manufactured tobacco substitutes;

(7) Asbestos and asbestos based products;

(8) Plywood and decorative veneers and other wood based products;

(9) Raw hides and skins, leather, chamois leather and patent leather,

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(10) Tanned and dressed skins;

(11) Motor car;

(12) Paper and newsprint except bagasse based units;

(13) Electronic aerospace and defence equipment—all types;

(14) Industrial explosives;

(15) Hazardous chemicals;

(16) Drugs and Pharmaceuticals;

(17) Entertainment Electronics;

(18) White goods such as domestic refrigerators, washing machines, microwave

ovens and air conditioners.

The compulsory licensing provision would not apply in respect of the small scale
units taking up the manufacture of any of the above items reserved for exclusive
manufacture in the small scale sector.

2. Policy regarding Public Sector:

In-spite of its huge investment, the public sector enterprises could yield a very
low rate of return on capital invested. A good number of public sector enterprises
are incurring huge amount of loss regularly. Thus, in order to face the situation,
the Government should restructure the potentially viable units.

The priority areas for the growth of future public sector enterprises included—
essential infrastructure, exploration and exploitation of minerals and oil,
technology development and products with strategic consideration.

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The new policy has now reduced the list of industries under public sector to 8 as
against the 17 industries reserved earlier as per 1956 policy. The industries which
are now removed from the list of reserved industries include—iron and steel,
electricity, air transport, ship building, heavy machinery industries,
telecommunication cables and instruments.

Those 8 industries which remained in the reserved list for the public sector are
:
(1) Arms and ammunition and allied defence equipment, defence aircraft and
warships;

(2) Atomic energy;

(3) Coal and lignite;

(4) Mineral oil;

(5) Mining of iron ore, manganese ore, chrome, gypsum, sulphur, gold and
diamond;

(6) Mining of copper, lead, zinc, tin, molybdenum and wolfarm;

(7) Minerals specified in the schedule to the Atomic Energy (Control of

Production and Use) Order, 1953; and

(8) Rail transport.

The new industrial policy states that the government will raise the strength of
those public sector units included in the list of reserved industries or in the
priority group of those earning reasonable profits. The government will now
make review of the existing public sector industries.

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Industries earning higher profit will be provided with much higher degree of
management autonomy through the system of MOU. Private sector participation
would be invited to raise the competitive capacity of these industries. Sick units
will now be referred to the Board of Industrial Finance and Reconstruction (BIFR)
for getting advice about its rehabilitation and reconstruction.

The government has also taken a decision to disinvest the equity shares of
selected public units for bringing market discipline in their performances. In
1991-92, Rs. 3,038 crore was raised and in 1992-93 Rs. 1,866 crore was raised
through disinvestment of PSE shares. Accordingly, a part of the shares of PSEs is
now being offered for sale to mutual funds, financial institutions, general public
and workers.

3. MRTP Limit:
As per the MRTP Act any firm with assets over a certain size (Rs. 100 crore since
1985) was classified as MRTP firms and such firm was allowed to start only
selected industries on a case by case approval. But the government now felt that
this MRTP limit has become deleterious in its effects on the industrial growth of
the country.

Thus, the new policy states that the pre-entry scrutiny of investment decisions by
the so-called MRTP companies will no longer be required. Instead emphasis will
be on controlling and regulation of monopolistic, restrictive and unfair trade
practices rather than making it necessary for the monopoly houses to obtain
approval of the centre for expansion, establishment of new undertaking, merger,
amalgamation and take over and appointment of certain director. “The thrust of
the policy will be more on controlling unfair or restrictive business practices”.

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Simultaneously, provisions of the MRTP Act will be strengthened in order to
enable the MRTP Commission to take appropriate action in respect of
monopolistic, restrictive and unfair trade practices.

4. Foreign Investment and Foreign Technology:

From the very beginning, foreign investment in India was regulated by the
government. Thus, for any foreign investment or foreign technology agreements,
prior approval of the government was necessary. All these were resulting in
unnecessary delays and thus hampered the decision making in business.

The new industrial policy thus prepared a specified list of high technology and
high investment priority industries (Annexure III) in which automatic permission
will be available for direct foreign investment up to 51 per cent foreign equity.
The Annexure III included 34 priority industries. Such as metallurgy, boilers and
steam generating plants, electrical equipment, telecommunication equipment’s,
transportation, industrial and agricultural machinery, industrial investments,
chemicals, food processing, hotel and tourism industry.

In respect of foreign technology agreements automatic permission will be

provided in high- priority industry up to a sum of Rs. 1 crore, 5 per cent royalty
for domestic sales and 8 per cent of the sale over a 10 year period from the date of
agreement or seven years from commencement of production. No permission will
be required for hiring foreign technicians or for testing of indigenously developed
technology abroad.

5. Location Policy Liberalised:

The new policy mentioned that in location other than cities of more than 1 million
population, no industrial approvals from the centre will be required except for
industries subject to compulsory licensing. In cities with more than 1 million

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population, industries other than those of non-polluting in nature, will be located
outside 25 kms of its periphery.

6. Abolition of Phased Manufacturing Programmes:

Phased manufacturing programme was enforced in order to increase the pace of
indigenization. The new policy has totally abolished such programmes as the
government feels due to substantial reforms of trade policy and devaluation of
rupee there is no need to enforce such programmes.

7. Removal of Mandatory Convertibility Clause:

From the very beginning a large part of industrial investment was financed by
loans from banks and financial institutions who have followed a mandatory
convertibility clause in their lending operations for new industrial projects. This
has provided an option to convert loans into equity if it was felt necessary by the
management.

This was an unwarranted threat to private firm. The new industrial policy
removed this system and henceforth, financial institutions will not impose this
mandatory convertibility clause.

Appraisal of the Policy:

Merits:
It is quite logical to think that a country like India is trying to achieve a faster
industrial growth. Thus, the new industrial policy (1991) paves the way for

liberalisation which will again result in a faster industrial growth as the industrial
sector is being relieved of unnecessary control and regulation. J.C. Sandesara
argued that the new policy will accelerate industrial production as it reduces
project time and project cost of production, attract capital, technology and
managerial expertise from abroad and improve the level of efficiency of
production; enhance the allocative efficiency of the public sector by opening up

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nine areas from public sector and improve its performance and finally greater
powers of the MRTP Commission will curb the monopolistic and oligopolistic
behaviour and thus promote their competition and efficiency.

Criticism:
But some economists have also criticised this new policy on various grounds. The
new policy made the provision for too much opening up of economy to foreign
influences. H.K. Paranjape agreed that those 34 high priority industries having
provision for automatic permission for foreign investment “would make it
possible for large trans-national to dominate certain growing areas of our country
and push to the wall any Indian concerns which attempt to stand out of their
own. Indigenous R&D will be doomed.”

Moreover, past record of the multinationals working in India suggests that these
companies are in operation more as trading than as manufacturing and exporting
concerns. Considering our huge manpower resources, we need a labour intensive
and capital saving technologies but the multinationals coming from a reverse
situation will find it very difficult to adopt with such technology.

Moreover, liberalisation of foreign investment up to 51 per cent foreign equity

and even 100 per cent export oriented company will counter the Nehruvian
Model where foreign capital was permitted only during transitional phase with
the goal to become self-reliant.

Moreover, free entry of foreign capital will remove the distinction between high
priority and low priority industries and accordingly foreign investment would
enter into all different lines of production. But considering our huge external debt
burden, entry of foreign capital should be restricted to only priority industries.
Allowing foreign equity in trading companies was also not justified.

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The main idea behind the free flow of foreign capital is backed by the arguments
that firstly, it would provide much needed foreign exchange and then secondly, it
would lead to huge volume of foreign direct investment in the high priority
industries. But in this connection, there is a fear that while doing so we may sell
our economic sovereignty to multinationals.

However, the government should be very much careful about the hidden
financial implications of reverse outflow of foreign exchange in the form of
remittance of profit, dividends and royalties of the foreign capitalists. Therefore,
considering the existing huge foreign debt burden, the Government must take
proper care to invite foreign capital only in high priority industries and the
country should not suffer by following the path followed by Brazil or Mexico.

The new industrial policy also mentioned about loss incurring public sector
enterprises which would be referred to BIFR. Thus, while passing this sick
enterprises to private business houses or to close such sick enterprises adequate
social security measures must be undertaken. But the new policy neglected this
provision.

It would be better if the ownership of such sick enterprises be transferred to

workers’ co-operative and the government should provide adequate financial and
technical assistance in order to revive such industrial units.

Moreover, the MRTP commission’s capacity to control and regulate the

monopolistic and unfair practices is doubtful as the past experience suggests that
the commission has failed in this respect.

From the foregoing analysis we can conclude that the new industrial policy has
introduced certain challenging issues in order to restructure and revive the
industrial sector of the country. The policy will rationalise the industrial

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investments will pave the way for growing competitiveness and profitability
outlook among the Indian industries in near future.

The policy will attract foreign investment, no doubt, but its capacity to generate
employment is doubtful. The exit policy will render many workers unemployed.
Lastly, giving excessive freedom to foreign capital may also affect our economic
sovereignty and will push the country towards debt trap. Thus, considering all
these apprehensions sufficient care should be taken in near future to keep the
industrial economy in right track.

Exit Policy, National Renewal Fund (NRF) and Voluntary Retirement Scheme
(VRS):
In order to safeguard the interest of workers who may be affected by
technological up-gradation of industry or closure of chronically sick units the
government established a National Renewal Fund (NRF) in February 1992. It
marks the launching of a process of industrial restructuring in the wake of new
economic policies aimed at taking the country globally competitive.

The government has decided that the structural adjustment would be done with a
“human face” though it does not mean keeping loss making units intact. Thus,
the government has mentioned in its budget that NRF would provide a safety net
for workers while an “exit policy” formulated to give recognition of the right to
“exit” when a unit cannot be run economically or is terminally sick.

Thus, the NRF is designed to be the safety mechanism which would provide
retraining and rehabilitation of workers adversely affected by structural
adjustments and technological change. Considering the magnitude of the
problems of sickness in industry and the scale of effort needed to retain or
redeploy or reequip workers, the size of the NRP has to be very large.

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It is visualized that the fund would be build up gradually not only with
budgetary provision from centre but also by contributions from the states,
financial institutions and the private sectors. The World Bank has offered
substantial support for the safety net programme.

It is initially decided that the fund would have Rs. 2,200 crore out of which Rs.
200 crore would come from the budgetary provision of 1991-92 budget, Rs. 1,000
crore expected from disinvestment of equity of public sector enterprises and
another Rs. 1,000 crore from the World Bank and other International
Development Agencies.

Accordingly, a sum of Rs. 200 crore had been earmarked for the National
Renewal Fund in the 1991-92 budget. This has been supplemented by a
substantial input of IDA resources at concessional interest rates to the fund of Rs.
500 crore in 1992-93. The first tranche of these resources has been received.

Another Rs. 500 crore was available from IDA during 1993-94. An amount of Rs.
542.23 crore was released from NRF during 1993-94 and an estimated 75,000
workers had opted for voluntary retirement under the scheme.

Objectives:
The following are the different objectives of NRF:
(i) To provide assistance to firms to cover the cost of retraining and re-
deployment of employees arising as a result of modernization and technological
up-gradation of existing capacities and from industrial restructuring;

(ii) To provide funds for compensation to employees affected by restructuring or

closure of industrial units, both in public and private sectors; and

(iii) To provide funds for employment generation schemes in the organized and

unorganized sectors in order to provide a social safety net for labour. The
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department of Industrial Development which administers NRF, has now taken
up the first set of cases relating to the National Textile Corporation units.

Thus, in order to protect the interest of public sector workers, the National
Renewal Fund was successfully set up and various schemes have been proposed
to assist the employees in re-training, redeployment and counseling. To
implement the NRF schemes an empowered authority has been created and a
provision of Rs. 700 crore has been made in budget for the year 1993-94.

Additional amount of Rs. 320 crore was approved for NRF in the supplementary
budget in December 1993. An amount of Rs. 786.24 crore was already released
from NRF (upto October 1993) and an estimated number of 60,000 workers had
opted for voluntary retirement under the scheme. A major portion of the amount
has been utilized in the textile sector.

Voluntary Retirement Scheme (VRS):

As a part of the Exit policy and also as an integral part of NRF, the voluntary
retirement scheme (VRS) was introduced simultaneously and at the initial stage it
was known popularly as Golden Handshake Scheme. As per this scheme, the
unviable public sector units have been empowered to introduce the scheme in
their units to have the way for voluntary retirement of workers and staff
accepting the on-time compensation instead of continuing as a sick entity.

The Government intends to encourage marginally profit making PSEs to promote

VRS by raising money from banks against Government guarantees and interest
subsidy. PSEs would also be encouraged to issue bonds to workers opting for
VRS with the Government guaranteeing the repayment of such bonds and fully
reimbursing interest payments.

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Though VRS is nothing new and has been in vogue in Central and State
Government jobs including FSUs since long, but what has made it more
important and acceptable now is the lucrative contents of employees parting
package of monetary gains that the employer is now ready to offer to him against
his voluntary retirement.

The “Exit Policy” guided by National Renewal Fund has created market friendly
globalized economic reforms. The NRF set up under the Ministry of Industries
with an allocation of Rs. 500 crore has three components to take care of viz., the
voluntary retirement scheme (VRS), retaining and redeploying of surplus staff
and creation of an insurance fund with contribution by employers as employees
for the provident fund.

While the concept of insurance fund died premature death, the component of
retaining and re-deployment of surplus workers got sidelined, which had badly
exposed the hollowness of the scheme.

Upto 31st March, 1997, 2.17 lakh employees of PSUs have opted for the voluntary
retirement scheme and an amount of Rs. 2,373.37 crore has been paid to them as
compensation money.

The Centre is exploring the possibilities of the formation of a National

Reconstruction Fund in place of the National Renewal Fund with a separate
corpus outside the budget to help revive sick PSUs.

In the mean time, the Central Government has spent Rs. 2,310 crore on the
implementation of VRS in 85 public sector undertaking till 1998-99.

The wave of liberalisation and outward looking market orientation has made
necessary the revival of the VRS with more attractive and larger package of

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benefits. At present, almost all PSUs including government offices come to
severely suffer from excess staff.

Liberalisation has exposed the organisations to global competition which is

governed by the rule of survival of the fittest. Under such a situation, the public
sector organisations must have the right kind of competence and skill and have to
dispense with the redundant manpower since they cannot continue to stay in the
market with unproductive employment and inefficient cost structure.

What is necessary is that the organisations have to correctly identify not only
dispensable employees but also redeploy-able part of the work force to fill the
competency gap.

Thus, the VRS should necessarily be a well thought out plan with its foresight on
retention of competence capability of facing technological revolution with
unrestricted competition and redeployment of right men in high places.

In the meantime, some organisations have already implemented the scheme,

while others are sorting out the offer of aspirant workers. However, in practice,
the scheme has been made open to all employees who have attained certain
minimum age or have completed a certain period of service.

While implementing the scheme, the VRS has assumed different patterns of
benefit packages in different organisations. As a result of unrestricted opening up
of the scheme and also due to more than expected parting gains, there are some
organisations like State Bank of India which faced a large scale exodus of
competent employees.

Accordingly, the organisation had to restrict the passage of the scheme to those
executive officials who have attained 55 years of age. This is not indicative of a

well thought-out scheme of dispensing with surplus staff of the PSUs. The
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scheme has offered full gross salary for the remaining period of service after
voluntary retirement. Giving such excessive benefit is perhaps one of the
important reasons for large scale exodus.

It seems that the scheme does not appear to have properly planned redeployment
of surplus workers. Thus, it is an imperative on the part of the Government to re-
examine the scheme in the light of aforesaid failure of Centre’s exit policy and
National Renewal Fund in the early 1990s.

New VRS Policy for PSUs:

On March 16, 2000, the Government of India approved a uniform voluntary
retirement scheme (VRS) for all public sector units (PSUs). Under the new VRS
scheme, all public sector enterprises will be divided into three distinct categories.
Firstly, a VRS scheme for those public sector units which are financially sound or
are profit making organisations. Secondly, a different scheme for marginally
profit making or loss making public sector enterprises and finally a scheme for
terminally sick or unviable units.

Conclusion:
In conclusion it can be observed that the New Industrial Policy (1980) is guided
mainly by the considerations of growth. The policy liberalized licensing for large
and big business, wanted to promote large scale industries at the cost of small
scale units. Thus the policy favours a more capital intensive path for development
and paves the way for the expansion of large and big industrial houses.the
licensing policy was criticized on the ground that it led to under-utilization of
production capacity, expansion of large industrial houses and economic
concentration, increased regional imbalances and promotion of inefficient

enterprises.

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 Q.12 Agrarian Reforms .

Ans-
Introduction :-

Agrarian Reform in India had been adopted to reallocate the agricultural

resources among all the people directly connected with agriculture. After
independence, the Government of India started the process of building equity in
rural population and improvement of the employment rate and productivity. So
for this reason the Government had started agrarian reform.
Reasons Behind Agrarian reform:

 Since India had been under several rulers for a long time, i.e right from the
beginning of the middle age, that's why it's rural economic policies kept
changing. The main focus of those policies was to earn more money by
exploiting the poor farmers.
 In the British period the scenario had not changed much. The British
Government introduced the "Zamindari" system where the the authority of land
had been captured by some big and rich landowners called Zamindar. Moreover
they created an intermediate class to collect tax easily.
 This class had no direct relationship with agriculture or land. Those Zamindars
could acquire land from the British Government almost free of cost. So the
economic security of the poor peasants lost completely. After independence, the
Government's main focus was to remove those intermediate classes and secure a
proper land management system. Since India is a large country, the
redistribution process was a big challenge for the Government.

**Varioues Objectives of Agraian reforms

According to agrarian reform land was declared as a property of State

Government. So agrarian reform varied from state to state. But the main
objectives of agrarian reform in India were:

 Setting proper land management,

 Abolition of Intermediaries
 Preventing fragmentation of lands,
 Tenancy reform.

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The land policies of different states faced several controversies . In some state the
reform measures were biased in favour of th big land owners who could wield
their political influence. However, agrarian reform in India had set a healthy
socio-economic structure in the rural areas.

AGRARIAN STUDIES AND ISSUES IN INDIAN CONTEXT

Historical Perspective of Agrarian Reform India’s modern history is closely and

in different ways connected with the battle for ownership and utilisation of
agricultural land. That seems natural in a country, where the overwhelming
majority of the population lives on the land and from farming and the whole
internal and export economy is still largely dependent on the production of this
sector. British colonial rule based its fiscal system upon a change of the agrarian
structure and of land tenure; slowly a class of ‘large proprietors’ was created. On
the other hand, social and later national opposition against colonial rule and its
underlings was accompanied by the aggravation of the socio-economic conditions
of the masses of impoverished agrarian and landless population, which was
caused by worsening of the tenancy situation due to tax-farming, share-cropping,
narrowing man-land ratio i.e. more people per unit of land. These poorer rural
sections, landless labourers, tenants, sharecroppers, small holders formed an
essential part of the mass basis of the Indian National Congress in its struggle
first for self-rule and internal autonomy (swaraj), later for full independence. A
few leaders advocated an alternative concept for the conservation of the social
and power structure that gives first priority to promotion of production and
wasteland reclamation as cure for the hunger for land. Whether agrarian
structural reform or promotion of production ought to be given priority is a basic
issue of India’s development strategy in general and of the strategy for
overcoming the slow progress or quasi-stagnation of farm production in
particular. In this out drawn struggle for land-titles and land-use the central
government under Prime Minister Indira Gandhi took new initiative in the late
sixties and early seventies to induce the state government to increase their
activity in the promotion of agrarian reform. The central government is only
entitled to enact general legislation and directives while the real competence both
in legislation and implementation of land-reform lies with the States (Bergmenn,
1984)

Issues of changing land holding pattern

Agrarian reorganization in India has failed to make any considerable impact on

the socio-economic conditions of the working cultivators (Ray, S.K. 2008).The
broad highly skewed nature of size distribution of ownership holdings has by
and large remained unchanged overtime, notwithstanding the progressively
downward shift in the distribution (NSSO). It is the background of the last four
decades experience that the need to reformulate the land policy of India should
be considered. With increasing pressure on land, the operating land base of many

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working cultivators is further reduced. Land is divided into small fragments,
each owned or leased by cultivators whose objective is subsistence. The size
distribution of land holding, cultivation practices and product sharing, operated
concertedly to hold down farm income. Overtime, a large number of farms has
become disincentive-ridden due to size disability. A substantial portion of such
cultivators seek to supplement their farm income by working as hired labours in
competition with even poorer landless workers.

Changes in the agrarian structure, viewed through changes in the size

distribution of ownership or operational holdings at different points of time, do
not give precise idea of the dynamics of the change process. The still photographs
of the structure at different points of time depict the combined outcome
differently and even countervailing processes are not very helpful in
understanding the dynamics of change. The dynamics can be better understood if
the movement upward or downward of a representative set of households in
different size classes of holdings over a period of time is documented (Dantwala,
1986).

In India, we get a picture that conceals significant differences in the composition

of agrarian structure in different States. There is no denying the fact that
ownership is very unevenly distributed. ‘It is obvious that even under the new
technology, very small or tiny holdings do not become viable’ (Bhalla and
Chadha, 1983).

The principal aspect of the agrarian structure is the increase in the number and
area under the small and marginal farms. In this context, the issue is being raised
whether for the overall deterioration in the structure; the blame could be
exclusively fastened on agricultural policy. Another aspect of the agrarian
structure which engaged the attention of the economists for sometimes is the
supposed tendency of the agrarian structure in India towards capitalism. So, the
factors which go into the shaping of the agrarian structure originating in a variety
of sources should be examined. Both the market and non-market forces in the
land transaction are here imperfect. In this context, the interesting question arises
whether the land market is a more efficient allocator of land than the non-market
mechanisms (Deshpande, 1982).

Laxminarayan and Tyagi (1982) made a useful attempt to find the basic features
of changing agrarian structure in India at the all India as well as state level on the
basis of the data from the various rounds of the NSS and Agricultural Censuses
etc. The study brings out that although there does not appear to be a marked
change in inequality in the ownership of land as measured by concentration ratio,
there is a perceptible decline in area held by large holdings and an increase in
area held by small and marginal holdings. In other words, the number of small
and marginal holdings as well as that of landless labourers has increased
significantly. Though patron-client relationship in its traditional form is slowly
cracking up in villages, the basic exploitative structure continues with traditional

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land owning classes. Moreover, assets held by cultivating households are not
evenly distributed in relation to area cultivated by them

Tenancy and contractual relations in land and labour

One of the crucial issues in the analysis of changes in agrarian organization is the
nature and extent of tenancy relations prevailing in different parts of India and
whether changes in tenancy relations are symptomatic of larger changes
prevailing in Indian agriculture. Specifically, the issue of tenancy is linked to an
exploration of the development of capitalist relations in Indian agriculture .But
the links of tenancy with the capitalist development in Indian agriculture has
been the subject of an intense debate (Srivastava, 1989).The post–independence
agrarian reforms were essentially based on a presupposition of peasant-based
agriculture. In the current phase of liberalization, in which a close integration of
Indian agriculture is envisaged with the world market and agri-businesses are
coming to play a larger role, the legislative frameworks governing land use,
ownership and tenancy are coming under considerable scrutiny (Srivastava,
1989).

Land market in India operates largely through tenancy rather than through
outright sale or purchase since ownership of land is considered to be one of the
most important sources of security and social status by the cultivators (Bardhan
and Rudra, 1978). The literature on the institution of tenancy particularly on the
issues pertaining to relative efficiency of different tenurial arrangements has
proliferated during the last few decades. Temporary transfer of land takes place
through the institution of tenancy which is one of the most important devices to
facilitate the adjustment of resources in factor markets where the endowment of
resources greatly influences the decisions of cultivators to enter the land-lease
market (Johnson, 1950).

A number of empirical studies, based on sample surveys, have examined various

aspects of tenancy relations like magnitude, type, relative efficiency of different
land tenure systems, and so on. The studies in eastern Indian States during the
seventies concluded that tenancy in particular share tenancy, in conjunction with
exploitative interlinkages in credit and labor markets acts as a formidable barrier
in the introduction of new agricultural technology (Bardhan, 1973; Prasad, 1974;
Bharadwaj and Das, 1975).Recent studies for these States have, however, reported
qualitative changes in tenancy relations (Chadha and Bhaumik, 1992; Swain,
1999). Likewise studies in agriculturally developed States or regions like Punjab,
Haryana and Western Uttar Pradesh, have brought out increasing incidence of
self-cultivation, emergence of fixed rent tenancy, participation of medium and
large households in the lease market as leasees, etc ( Singh,1989 ; Bhalla ,1983 ;
Srivastava ,1989 ; Siddiqui ,1999).It is, however, important to know as to what
extent the changes in different aspects of tenancy relations, reported by different
field studies, have gained ground at the macro level. The available studies do not
answer this question satisfactorily (Sharma, 2000). Against this background ,it is
very much necessary to know about the incidence of tenancy in terms of mixed
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holdings, entirely leased-in holdings and leased-in area declined significantly
over time and across the States .To what extent the share tenancy has been
replaced by fixed rent tenancy is important here. However, theextent of the
participation of marginal and small households in the lease market both as
leasees and leaser is also crucial here.

Agriculture and its policy perspective

Indian agriculture has undergone some major structural changes in recent years
and this has enhanced the market induced vulnerability of a section of the rural
population (Vyas,1979).Over a period of time, Indian agriculture has been
progressively acquiring the ‘small farm’ character. By 1995-96, nearly 36 percent
of the cultivated area was operated by small and marginal farmers, an increase
from the 29 percent in 1985-86. However, the forces which shape the agrarian
structure in so far as they affect growth and equity may be demographic
pressure, market process involving purchase and sale of land, land reform,
supply system of credit and other inputs, marketing and other extension service
and technology particularly in regards to its capital and its intensity (Vyas, 1979).

In Indian literature of agricultural economics, the farm size-productivity

relationship debate is one of the most important debates. The debate on this
inverse farm size-productivity relationship, which started with the publication of
Sen’s (1962) paper in The Economic Weekly, though concluded in the mid-
seventies, continues to attract the attention of scholars even today. Most of the
studies during the first phase of the debate (1960-75) were based on the pooled
data emanating from the Farm Management Survey Reports (FMSR). During this
phase, a majority of the scholars after analyzing pooled or aggregate date from
FMSR regarded this inverse farm sizeproductivity relationship as a ‘stylized fact’
and more or less a universal phenomenon. When the debate concluded in the
mid-seventies, there was a near consensus among scholars that small farms are
more productive as compared to their large counterparts (Sharma and Sharma;
2000). In fact, the impact of the debate was so pervasive that Michael Todaro
observed: “Evidence on a wide range of third world countries …………… clearly
demonstrates that small farmers are more efficient producers of most agricultural
commodities” (Todaro, 1981).

Likewise, while commenting on the policy implications of the inverse farm

sizeproductivity relationship, Berry and Cline (1979) remarked:

“The central policy implications of the analysis are that land redistribution into
the family farms (assuming it to be small) is an attractive policy instrument for
raising production and improving rural employment and equality of income
distribution”.

The wide spread empirical evidence on this inverse farm size-productivity

relationship provided theoretical and logical support to the numerous land
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reform measures and small farm bias in development strategy in India and other
developing countries.

A number of explanations have been put forward to explain the inverse farm
size-productivity relationship. These can be classified into three categories:
Firstly, explanations that attribute higher productivity on the small farms to the
use of better quality inputs, for example, higher fertility on the small farms,
superior and better techniques of production used by these farms, high
management efficiency, higher impact of indivisible factors of production on the
small farms, the effect of fragmentation on the small farms and disincentive of
tenancy, absentee landlord ship etc. Secondly, the explanations which invoke the
intensity of input use on the small farms like predominance of family labour
which is cheaper on the small farms, more intensive use of labour, capital and
current inputs on such farms, higher intensity of irrigation, the dominance of
high value and more productive crops in the cropping pattern and the feedback
of higher earnings on the production of labour on the small farms. Thirdly, a class
based political economy explanation of inverse farm sizeproductivity relationship
had also been advanced by some scholars (Patnaik, 1987; Bharadwaj; 1974)

Of course, there were a few others who argued that inverse relationship couldn’t
be considered universally valid (Rudra, 1982; Bhardwaj, 1974). The second phase
debate on the farm size-productivity commenced around the eighties when the
scholars increasingly started questioning the validity of inverse relationship
either analyzing the old data set from FMSR using more appropriate statistical
tools or by incorporating some new variables like land quality, etc. or by using
more recent data set. The basic argument of these studies is that with the spread
of new agricultural technology, the inverse relationship has either weakened or
even has got reversed. A study by Chadha (1978), using disaggregated data for 61
villagers from different parts of Punjab, concluded that in the central and south
district, which had come under the spell of Green Revolution, the inverse
relationship had disappeared.

From the foregoing discussions, the conclusions were a mixed lot. While some
scholars found inverse relationship to be true, some other observed no
relationship between farm size and yield, inputs used and cropping intensity
(Rao, 1967). In brief, when the debate concluded in the mid-seventies, there was a
broad consensus among scholars that the small farm is more productive, some
dissensions and disagreements notwithstanding.

Land Reforms before Independence:

The permanent Settlement of 1793 created a class of superior proprietors who

usurped the unwritten but age-old rights of tenants in their lands. By leaving a
wide margin between the landlord’s rent and the revenue demand of the State, it

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enabled this class to live and prosper on the surplus by effectively using the
power of ejectment.

The best remedy of the problem lay in undoing the blunder and in re-establishing
the relations which existed between the revenue farmers and tenants before 1793.
But landlords were the govt’s own creation and her powerful allies.
Understandably, the govt. could not have destroyed them or undermined their
position.

The best that could be hoped for was “a compromise here and an adjustment
there” so as to maintain the otherwise crumbling structure of their land system.
Thus came the tenancy legislation. The settlement of 1793 had left the ryots at the
mercy of the Zamindars who ‘rack rented, impoverished and oppressed them’.

It was not that the govt. was unaware of the injustice done or the plight of the
tenants. As far back as 1819, the Court or Directors of the East India Company
observed that “consequences most injurious to the rights and interests have
arisen from describing those with whom Permanent Settlement was concluded
as the actual proprietors of the land”.

And yet 40 years elapsed before the govt. came forward to protect the interests of
the ryots. The Bengal Rent Act (Act X) of 1859 was the first legislative attempt at
defining the rights of tenants and protecting them against frequent enhancement
of rent and arbitrary ejectment.

The Law applied to all provinces included in the Bengal Presidency. In the case of
the North Western Provinces and Oudh, it was superseded by the Rent Act of
1873 while in the Punjab, certain safeguards were included in the terms of the
Settlement itself.

Land Reforms since Independence:

The peculiarities of Indian agriculture, combined with the declared desire to

bring about economic development as well as social justice led the govt., in the
post-Independence period, to under-take a comprehensive programme of land
reforms. These reforms, be it noted, had a popular base in as much as they were
preceded by peasant, disturbances and violent clashes in several parts of the
country.

These reforms comprised:

(a) abolition of intermediaries

(b) ceiling on land holdings

(c) Tenancy legislation

(d) cooperative farming

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(e) abolition of forced labour and

(f) consolidation of holdings.

(a) Abolition of Intermediaries:

One of the first aims of the agrarian reforms was to eliminate the middlemen such
as the Zamindars and Jagirdars so as to bring the cultivator into direct
relationship with the govt. The work of Zamindari abolition was comparatively
easy in the temporarily settled areas such as U.P. and M.P. where adequate
records and administrative machinery existed.

In the permanently settled areas of Bihar, Orissa, and West Bengal ans in areas
under Jagirdari settlements such as Rajasthan and Saurashtra “land records and
revenue administration had to be built from the beginning.” Nevertheless, laws
abolishing intermediary tenures were given effect to in most of the states.

The general pattern was made up of the following features:

(1) All land including common lands, forests, mines, mineral, rivers, channels,
and fisheries were vested in the govt. for purposes of management and
development.

(2) Home-farm lands and lands under the ‘personal’ cultivation, of intermediaries
were left with them.

(3) In most states, the tenants in-chief holding land, directly from intermediaries,
were brought in direct contact with the State with some exceptions such as in
Bombay, Hyderabad and Mysore. In these states, intermediaries were, in some
cases, allotted lands held by tenants.

In some States, tenants possessed permanent and transferable rights and it was
not necessary to confer further rights upon them. These included Assam, West
Bengal, Bihar, Orissa, Bhopal and Vindhya Pradesh.

There were other states such as Bombay, U.P, M.P, Hyderabad, Mysore and Delhi
where tenants were required to make payments in order to acquire rights of
ownership. In a few states such as Andhra, Madras, Rajasthan, either larger rights
were conferred upon tenants or their rents were reduced without any direct
payment being required of them.

A distinct feature of the Zamindari Abolition Acts was the payment of com-
pensation to the landlords although the rate and the mode differed from state to
state. Barring Kashmir where no compensation was paid, in others it was fixed
either as a multiple of land revenue assessment or of rent or net income.

In all, compensation, including rehabilitation grants, payable to the

intermediaries amounted to Rs. 670 crores. Only a part of this compensation or

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rehabilitation grant and that too to small land owners was paid in cash, the
remaining being paid in long term bonds.

The removal of intermediaries had far reaching effects. As Daniel Thorner points
out, the new laws took away from intermediaries their rights to collect rents on
lands which they themselves did not cultivate. They also relieved them of the
responsibility for paying land revenue on such lands.

On the other side, 173 million acres were acquired and 20 million tenants brought
into direct relationship with the state. In some cases, tenants acquired full
ownership rights, including the right of transfer without any payment. In others,
they were required to make some payment for acquisition of full occupancy
rights.

It also brought about improvement in the administrative machinery and social

services. But more important was the downward revision in the rates of land
revenue which were brought in line with rates prevailing in the ryotwari areas.
An effect of great significance was to give the richer peasants an opportunity to
become landed proprietors.

(b) Land Ceilings:

According to the Report of the Panel on Land Reforms, the aim of land ceilings
was to:

(i) meet widespread desire to possess land;

(ii) reduce glaring inequalities in ownership and use of land;

(iii) reduce inequalities in agricultural income and enlarge the sphere of self
employment; and

(iv) give a new status to the land-less.

With a view to achieving these objectives, legislation was passed in all states
imposing ceiling on existing land holdings as well as on future acquisition of
land.

However, provisions relating to level, transfers, and exemptions differed con-

siderably from state to state. In Assam, Jammu and Kashmir, West Bengal and
Manipur, there was one uniform ceiling limit irrespective of the class of land,
ceiling being fixed at 50 acres, 22 ¾ acres and 25 acres respectively.

In all other states, the level of ceiling was fixed to take account of different classes
of land. For example, the ceiling ranged all the way from 27-134 acres in Andhra,
20-80 acres in Orissa, 19-132 acres in Gujarat, 18-126 acres in Maharashtra. In
others, it was fixed in terms of standard acres, a standard acre being equal to a
certain number of ordinary acres a laid down in the Act passed in each state.

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Thus ceiling was fixed at 30 standard acres in the Punjab (Pepsu area only)
Rajasthan, Delhi and Madras; 25 standard acres in Madhya Pradesh and 27
standard acres in Mysore. In U.P., ceiling was imposed at 40 acres of ‘fair-quality’
land.

These different levels of ceilings, as M.L. Dantwala points out, did not bear any
relation either to climate or soil conditions prevailing in different regions or to the
density of population. It appears these ceilings were fixed primarily on the basis
of the average size of large holdings in a particular state or by the influence
exerted by different political forces in the legislature.

Development of Agriculture Reforms : 3 Stages

From the point of development, Mellor divides agriculture into three stages.
The stages are: 1. Traditional Agriculture 2. Technologically Dynamics
Agriculture-Low Capital Technology 3. Technologically Dynamic Agriculture
High Capital Technology.

Stage # 1.

Traditional Agriculture:

“It is a technologically stagnant stage in which production is increased largely

through slowly increased application of traditional forms of land, labour and
capital.” The increase in output takes place through an essentially symmetrical
expansion of all inputs or through increased input of the already abundant low
productivity resources. Declining income and productivity per unit of an input is
a common feature of this phase.
Policy in a Traditional Agriculture:

When we find agriculture in the traditional stage, the obvious objective is to push
it into the 2nd stage. This is because it is mainly in the 2nd stage that agriculture
starts helping the industrial development of the company.

No doubt, if we look at the history of economic development of west European

countries, we find that industrial development started even when agriculture was
in the traditional phase. Agricultural production increase in the traditional phase
through increase in the area under cultivation.

The increase in population was not sufficient to consume away the extra
production. The extra production helped the industrial sector which helped the
agricultural sector in term through providing improved agriculture inputs.

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Stage # 2.

Technologically Dynamics Agriculture-Low Capital Technology:

In stage II, “a complex of technological changes substantially increases the

efficiency of agricultural processes and raises the rate of increase of
agricultural production………. The critical characteristics of stage II, as
compared with stage I is the constant generation and application of technology
which is facilitated by a complex institutional framework…”

In this stage:

(a) Agriculture still represents a large proportion of the total economy

(b) Demand for agricultural products is rising rapidly due to both demographic
and income effects,

(c) Capital for industrial development is particularly scarce and returns are rising

(d) Limitations to the pace of economic transformation and pressure of

population growth preclude enlargement of the average acreage per farm and

(e) Use of labour saving agricultural machinery is largely precluded by

unfavourable labour-capital cost relationships. These conditions call for a type of
agricultural development which at one time not possible, but which is now
facilitated by modern science.

State and the Second Stage of Development:

Once the agriculture of an economy has entered the 2nd stage its development,
the objective state policy should be:

(a) To see that the various inputs which are responsible for pushing agriculture in
the second stage of development are progressively utilized by all farmers and
also continue to be made available to the farmers at reasonable rates, (this will
necessitate a large-scale import for these input from outside through the export of
agricultural products and also industrial products after the industrial sector is
developed or the setting up of industries producing these inputs in the country
itself);

Stage # 3.

Technologically Dynamic Agriculture High Capital Technology:

This is the stage when agriculture has much of its relative importance in the
generation of the National Income. Agriculture of various developed countries is
included in this stage. Government’s role in different stages is quite important. In
nature, of course, it is different. We would like to highlight the objectives and
important policy measures relevant for each stage in the paragraphs that follow.
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It may be noted that as the stage of agricultural development cannot be very
finely demarcated, the objectives of agricultural policy at a particular time, too
cannot be defined rigidly. What we fined at a particular point of time is a set of
objective, their order of priority, of course, changing as the time changes. We shall
be giving below only the relatively more important policy objectives vis-a vis
agriculture in different stages of development.

Government and Agriculture:

If the process of development, as visualized when the agriculture as in stage II,

continues, a time will come when both the agricultural sector as well as the
industrial sector are highly developed through interdependence. This is
agriculture in Phase III.

Such an agriculture has two major problems:

(1) The farm problem and

(2) The instability of agriculture.

Farm problem, to describe briefly refers to the phenomenon of poverty among

plenty in the agriculture sector. Agricultural production, in physical terms, goes
on increasing as its development proceeds.

However, the income as a result of this increased production does not increase
proportionately due to a low income elasticity of demand for agricultural
commodities in developed economies. Per capita income of the farmers thus falls
in relation to that of the people in the non-agricultural sectors.

Instability of agriculture becomes more prominent in stage III because much of it

occurs due to the developed nature of the industrial sector. A developed
industrial, as we know suffers from the malady of booms and depressions.
As the industrial sector, at this stage of economic development, is very closely
connected with the agricultural sector through purchase inputs from the
agricultural sector and through sale of its products to the agricultural sector,
these booms and depressions are transmitted to the agricultural sector also. The
instability of agriculture thus, becomes more pronounced in this stage.

Indian Agriculture Problems: 7 Major Problems of Indian Agriculture

The following points will highlight the seven major problems of Indian
agriculture.

Problem 1. Instability:

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Agriculture in India is largely depends on monsoon. As a result, production of
food-grains fluctuates year after year. A year of abundant output of cereals is
often followed by a year of acute shortage.

This, in its turn, leads to price income and employment fluctuations. However,
for the thirteen year, in successive (1987-88 to 1999-00) a normal monsoon has
been observed.

Problem 2. Cropping Pattern:

The crops that are grown in India are divided into two broad categories: food
crops and non-food crops. While the former comprise food-grains, sugarcane and
other beverages, the latter includes different kinds of fibres and oilseeds.

Problem 3. Land Ownership:

Although the ownership of agricultural land in India is fairly widely distributed,

there is some degree of concentration of land holding. Inequality in land
distribution is also due to the fact that there are frequent changes in land
ownership in India. It is believed that large parcels of land in India are owned by
a- relatively small section of the rich farmers, landlords and money-lenders, while
the vast majority of farmers own very little amount of land, or no land at all.

Problem 4. Sub-Division and Fragmentation of Holding:

Due to the growth of population and breakdown of the joint family system, there
has occurred continuous sub-division of agricultural land into smaller and
smaller plots. At times small farmers are forced to sell a portion of their land to
repay their debt. This creates further sub-division of land.

Problem 5. Land Tenure:

The land tenure system of India is also far from perfect. In the pre-independence
period, most tenants suffered from insecurity of tenancy. They could be evicted
any time. However, various steps have been taken after Independence to provide
security of tenancy.

Problem 6. Conditions of Agricultural Labourers:

The conditions of most agricultural labourers in India are far from satisfactory.
There is also the problem of surplus labour or disguised unemployment. This
pushes the wage rates below the subsistence levels.

Problem 7. Other Problems:

There are various other problems of Indian agriculture.

These are related to:

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(i) The systems and techniques of farming,

(ii) The marketing of agricultural products and

(iii) The indebtedness of the farmers.

Conclusion :-

Modern study of agrarian structure and relations is one area where theoretical
and empirical works have blended extremely well. In response to the theoretical
research of the eighties began a second round of empirical research which was
now more focused because it had a theoretical base which the seventies did not
have. The second wave of empirical research has given up plenty of micro
insights into institutions and more of agrarian economic relations. A relatively
low land-man ratio, unequal distribution of land ownership, a high degree of
subdivision and fragmentation of holdings, predominance of small farms
operated mostly by owner cultivators, the limited role of tenancy and high
dependence on wage labour for agricultural operations are the distinguishing
characteristics of the Indian agrarian economy. The broad, highly skewed nature
of size distribution of ownership holdings has, by and large, remains unchanged
over a period of four decades, notwithstanding the progressively downward shift
in the distribution. The supposed tendency of agrarian structure towards
capitalism is another aspect of agrarian structure. Land market in India operates
largely through tenancy rather than through outright sale or purchase. Despite
legal restrictions on leasing in most of the states, there is an active land lease
market. To this extent, tenancy laws of various States remain largely ineffective.

Q.13 Discuss the role and effect of public opinion in legislation and bring
social change with reference cases?

Ans-

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Introduction:-

The origin of term 'public opinion' is shrouded in obscurity.The Greeks and the
Romans used parallel expressions. The Romans, however, treated consensus
populi in juridical sense as distinguish from present political context. Also, the
proverb "Vox populi, vox dei" had gained currency during the middle Ages. In
the Discourses Machiavelli, too, compared the voice of the people to the voice of
God. The phrase public opinion in its present meaning as the agency for the
conditioning of public policy was introduced later into the vocabulary of the
European politics through France. Jean Jacques Rousseau was perhaps first to use
it on the eve of French Revolution. Today, the literature of democracy symbolizes
in fact the rationalization of political behavior in terms of public opinion. To
quote MacIver, "This incessant activity of popular opinion is the dynamic of
democracy."

Public Opinion

The role of opinion in government is generally agreed. As Bryce puts it, "Opinion
has really been the chief and ultimate power in nearly all time Governments have
always rested and, special cases apart, must rest, if not on the affection, then on
the silent acquiescence, of the numerical majority." In non-democratic
governments, the people acquiesce in or give passive consent to authority out of
respect, habit of obedience or fear of repression. But the distinguishing feature of
democracy is that governmental authority is built, controlled and conditioned by
the force of an active public opinion.

On the nature of public opinion, however, writers in their opinion. Even if the
theory of democracy is accepted and the role of opinion in the determination of
public policy is taken for granted, the debatable points are: "What public?" and
"Whose opinion?" A political "public" may mean anything ranging from an
undisciplined mob to an articulated minority. Again, "opinion" may be rationally
or irrationally formed, or expressed. These are similar other problems relating to
the concept of public opinion have produced an important controversies

Nature of Public Opinion

In the field of political theory the concept of public opinion has been subjected to
a through analysis in recent years. Still, there is no general agreement as to its
meaning or function and in the absence of analytical clarity, the discussion on its
nature, to quote Sait, have "often introduce confusion rather than enlightment."

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The concept of public opinion came to limelight in the wake of democracy. The
governmental policies gradually became the function of opinion rather than of
force, and the means for the expressions of opinion like constitutionally
guaranteed liberties, elections, political parties etc., were at hand, the role of
public opinion in the government came to be generally recognized. The theory of
public opinion is thus a derivative from democracy as a form of government.
The broad assumption on which the theory is built are:
1. that the public is interested in government;
2. that the public knows what it wants;
3. that the public has the ability to express what it wants;
4. that the public's will would be enacted into law.

Granting those conditions how should public opinion be defined? To follow

Finer, most definitions of public opinion are intended to mean one of the three
things:
1. A Record Of Facts. As a record of fact, opinion means such a simple statement
as ' the Soviet Union has exploded a super-bomb'.

2. A Belief. As a belief, opinion implies not only a record of facts but also their
valuation. It also involves a prophecy about the future course of events. The
sentence, 'There shall not be a war on the Berlin issue', illustrate the point.

3. A Will. As a will, opinion is not is not merely a record and valuation of facts; it
also asserts a course of action. For example, when we inquire, 'India should go to
war with Pakistan over the question of the azad Kashmir-yes or no?' we mean
that it is worthwhile to pursue a course of action. In the field of political
dynamics, public opinion is intended to produce a concrete governmental policy.
Hence, as Finer observes "Politics is most concrete with public opinion as will
which, typically eventuates in a statue and in administration."

Traditional Concept of Public Opinion

In the latter part of the 19th century and early 20th centuries the traditional
concept of public opinion come to be widely accepted. It was built on the easy
generalization that some million individuals could achieve a consensus and form
a public opinion on various issues such as taxation, labour legislation, and foreign
policy etc. the power of public opinion, as Lieber defined it, is "the sense and
sentiments of the community, necessarily irresistible showing its power
everywhere," which "gives sense to the letter and life of law; without the written
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law is a mere husk." Thus conceived, public opinion assumes in the background
the existence of the solidity unified, homogenous public. Such was Rousseau's
idea; he assumed a society of men, generally enlightened on honest, active in
their own political interests and free from fractional associations. Obviously, he
considered popular opinion as one and indivisible. Somewhat similar conceptions
are found in the writings of number of modern writers. Thus, E.M. Sait observed,
"there should be no question about what we mean by calling opinion 'public'; we
mean, in the light long established usage, that it is the opinion of the community,
the opinion of the people."

A public opinion might be said to have emerged, when any set of views was
entertained by an apparent majority of citizens. To quote Bryce, "the term (public
opinion) is commonly used to denote the aggregates of the views men hold
regarding matters that effect or interest the community. The opinion of a whole
nation as made up of different currents of sentiments, each embodying or
supporting a view or a doctrine or a practical proposal. Some currents develop
more strength than others, because they have behind them larger numbers or
more intensity of convections; and when one is evidently the strongest, it began
to be called public opinion par excellence, being taken to embody the views
supposed to be held by the bulk of people."

According to A. Lawrence Lowell, the opinion of the community is never

unanimous. It is normally much divided. Opinion can be characterized as public,
only when the majority of citizens accept it. The majority view must be accepted
by any dissident minority voluntarily as a manner of convictions rather than
coercion. According to Lowell, if any minority withholds consent, or gives it
grudgingly or unwillingly, the prevailing opinion cannot be called public.

Contemporary View
The criticisms leveled against the traditional idea of public opinion have paved
the way for a redefinition of the concept. Any collection of individual opinions is
now designated as public opinion. "such a public need not represent a majority,
need not coincide with the electrode, and may not be well advised, depending
upon observer's standards or point of view" the modern analysis of public
opinion is not concerned with the hypothetical homogeneous public expressing a
collective will on matters of public policy.

The term 'public' is now supposed to mean essentially a segment of society.

Obviously, therefore, there, may be different kinds of public. A particular type of
public may be distinguished by referring to the interests shared in common by

178 | P a g e
the group involved. Accordingly, the labour unions, business organizations etc.
fall in this category. Again publics may be geographically identified on the basis
of village, city etc. as professor Kimball young observers. "as we see it, the term
public refers not to one great mass of persons living in a community, a state, or a
nation, but rather to various groups of secondary contact... we use it to indicate
various interest groups, especially those marked by the secondary group
characteristics. Therefore we shall speak of publics rather than a public." of these
publics some, like the political party members, are relatively permanent. Others
may be temporarily formed through short duration contacts like the audience in a
meeting. A public becomes politically significant when its influence is brought to
bear on matters of public policy. Public opinion, as William Albig defines it, "is
the expression of all those members of a group who are giving attention in any
way to a given issue."

**Agencies for the Formation of Public Opinion in Legislation

Opinions on political matters are slowly formed. The common people, as Bryce
pointed out, have hardly any interest in the affairs of the state. Some agencies are
needed to excite them. Of these agencies, the following are of special importance;

1. Press

For the facts relevant to the formation of public opinion, almost everyone has to
depend on the newspaper. As the newspapers are available at a very cheap price,
their influence in moulding opinion, with the spread of mass education, has
increased by leaps and bounds. Most of the newspapers publish the details of
legislative debates, speeches of eminent personalities, announcements of
governments and parties and various other news. Not all of them are political;
but still political facts are certainly the best for consumption. So, every newspaper
takes pains to collect political news and make delicious dishes out of them. The
representation of facts is not the only function; their interpretation and
systematization into a particular view point are also undertaken by the
newspapers. Almost every paper has 'a tendency and dogma'. These are
highlighted in the editorial columns. Even the manner of news flashing in
headlines or elsewhere on the columns betrays the peculiar character of a
newspaper. The readers avidly read the news and come to align themselves with
a particular paper. Grievances are ventilated and views expressed by the public
through the newspapers. For this purpose most papers earmark a few columns
for its general readers. The news and views do not always go unheeded. The
government takes note of them and carefully studies pubic reaction against its
measures through the mirror of the newspapers play a vital part.
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2. Cinema And Radio

For communicating ideas the motion picture and the radio are important
agencies. Only educated people may be influenced by the newspapers. But,
owing to the audio-visual method the cinema and the radio can influence even
the illiterate. In the developing countries such as India where illiteracy is
widespread, these media are very helpful in spreading mass education. Their
potentialities are, however, not fully tapped. The cinema, for instance, has
remained almost exclusively a means of entertainment. As it is privately owned,
it usually serves commercial rather than educational purposes. Still, however,
with the production of good documentaries and other educational films, the
cinema may well be used as a means of education and opinion-formation.

3. Political Parties

The most important agency for opinion formation is the political parties. To use
Lowell's oft-quoted phrase, parties are brokers of ideas. Day in and day out they
feed the people with the facts and ideas. Their sole purpose is to rally the people
to their side. For, they want to get the majority in the legislature and hold the
reins of government. Accordingly, parties 'arrange the issue upon which the
people are to vote.' Canvass their point of view, nurse the constituencies, and set
up candidates. The people farm the back bone of democracy. The valuable service
rendered by parties is that they organize the people and amble them to choose
between alternatives. Various indictments have been made against political
parties. Their honesty and utility have often been questioned. Still, without them
public opinion, which is the prime mover representative democracy, can never be
formulated and put to its proper use.

4. Platform.

For educating people and formulating opinion platform speeches are very useful
means. Hence, every democratic government guarantees the right to freedom of
assembly. The speeches delivered in public gathering sometimes leave indelible
impression in the minds of the listeners. All sorts of oratorical skills are employed
to influence the public mind. A Brututs may win temporary admiration, and an

180 | P a g e
Antony, a durable fame. Nevertheless, eminent political leaders do set in motion
the process of public thinking on important political issues.

5. Educational Institutions

In the creation of public opinion the educational institutions are of considerable

importance. The way in which students are trained up in schools, collages and
universities greatly influences the future course of their life. The ideas developed
in the early ages condition a student's outlook. These educations are intended to
stimulate and increase curiosity. But a method of education that robs students of
their open mindedness and drugs them with the number of political half-truths is
certainly injurious.

Public Opinion and State:

The state in indeed the organized power of the community, equipped

with a steadily increasing armory of instruments of action, and as such, it
is opposed to the unorganized grounds well of public opinion. The power
of those who control the machinery of the state has been multiplied
manifold, absolutely and relatively, by the development of the modern
legislative and administrative machinery as well as the growing
concentration of physical and technical power, and the means of
communication. But it is still the people, groups and individuals, who
control the machinery. They are themselves, to a greater or lesser extent,
the representatives of the social forces which, in turn, they seek to mould
and control through the instrumentalities of the state.
At the one extreme a ruthless individual or a small group, holding
in their hands a concentrated power which the modern fascist and
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 communist systems have demonstrated, may seek to impose their will, in
the form of laws, regulations and police action on an apathetic or
crowded community. At the other extreme, prevalent in primitive
communities, but increasingly infrequentin our time. A government may be
essentially representative, taking the minimum of action, when required by
overwhelming pressure to do so.

Constitutional Pattern:
A totalitarian government can indeed use its monopoly of the law
making and executive power for the reshaping of law, in disregard of the
democratic processes of opinion, to a far greater extent than other system,
but is limited by the need to secure at least the acquiescence and, where it
produces an educated minority the willing acceptance of its law. It is on the
other hand limited by the permanence of certain categories of social
relationships, dictated by the conditions of human life and society rather
than by a specific political ideology.
In a democracy, the interplay between social opinion and the law
moulding activities of the state is a more articulate one. Public opinion on
vital social issues constantly expresses itself not only through the elected
representatives in the legislative assemblies, but through public discussion
in press, radio, public lectures, pressure groups and, on a more sophisticated
level, through scientific and professional associations, universities and a
multitude of other channels.
In recent years, the Indian constitution of 1950 has abolished both the
polygamous marriage and the caste system, in the face of age - old social and
religious custom. How far this legal revolution will be success is still a matter
of some uncertainty. That it has even been attempted is, in itself, a sign of the
greatly increased power of modern state action as against old social custom.
But not even the prestige of a Nehru, or the predominance of the congress
party in organized political life in India, could have attempted such for
reaching reforms, unless the impact of western ideas had effected a far -
reaching change in educated public opinion.
Changes and Democracy:
It should be pointed out that the unofficial veto power of minority groups
obtains in all democracies, to a greater or lesser extent, and that it need not
necessarily find organized expression in any one political party. In terms of
legal and social reform, democracy means implementation of the will of the
majority only with very severe restrictions. Thus a well organized and
influential minority can delay changes to which it objects strongly almost
indefinitely, even though a majority of the people might favor it.
Public opinion is gaining ground that law must express justice as
understood by the people in a particular country and it must shape
according to

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 the interest of the masses. "Law is for man and not man for Law" Law must be
activist promoter of social change.
The state is nothing but the organised Power of the community
equipped with steadily increasing armour of instrument of action and is such it
is opposed to the organised groups well of public opinion.
Dicey critically examined the distinction between individualism
and socialism. The place of public opinion in England at one stage was
gradual slow and continuous. But Dicey traced it with historical. In-
sustrations of various pieces of legislation, such as the municipal reforms
Act 1834 and Municipal Corporation Act 1982. He critically examined the
Divorce Act 1857. In connection with the Married women property Act
1870 and 1893. If traced the development of legislative attitudes to
achieve equality between men and women.of thoughts which he critically
examined in various lectures in his books. This main curvents of 19th century
are individualism and collectivism. Individualism is the period of Bentham
(1825 - 1870) and collectivitism (1865 - 1910) is a new thought and according to
Dicey rather a sentiment.

Independence legislation with reference to public opinion:

The legislation is used by the state in modern democracies to control
public opinion and take action in the fields of safety, health, food, shelter,
employment, condition of work etc. for the material well being of present
generation. It is a familiar 1 meant of socialist thinkers that political
initiative and activitism have feded a many trade unionist with the
attainment high real wages, Social insurance, full employment policies
etc. It means that in a planned economy the legislation controls the
thought and actions of some groups in the society and naturally they
become indifferent about social planning for other groups of the society.
Therefore, there must be increased participation of an individual and
their associations for maintaining democratic control. There are many
post independence legislations in Family Law which are discussed in a
separate question.

Post Independence Labour Legislations:

The Factories Act, 1948–
This piece of legislation has provided safety, health and welfare
provisions of the industrial workers. Before the enactment of this
legislation because of the inadequate protection provided in the industry
people were thinking that it is dangerous to work in the industry. The
industrial employers were hesitant to make adequate provisions to
minimise the expenses and to maximise the profits by exploitation of
labour. Because of the unemployment problems due to second world war,
people were ready to work in dangerous operations in any type of factory.

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 The Planned legislation taking into consideration the welfare of the
society has provided safety provisions. Similarly, the planned legislation
has provided health provisions for ensuring the health of the industrial
workers and the welfare facilities for the welfare of workers and their
families. Many other provisions were embodied in the Factories Act, after
independence and the position now existing is the industrial worker has
achieved safety, security and dignity without affecting the employers
position or status.

The Workmen's Compensation Act 1948:

This post independence legislation has provided for compensation for
disabled or diseased persons employed in the factory. A sense of security was
developed between the workers because the legislation has given the
provisions of giving the amount of compensation only for the injury arising
out of and in the course of employment.

The Employees' State Insurance Act - 1948:

This legislation was enacted in view of social security. Thus in modern

democracies the legislation controls peoples thought action which obviously
immerse from the basic needs such as food, shelter, and clothing.Examples of
other pieces of labour legislation can also be cited.
Thus, the state usage the statutes or pieces or legislation for
controlling the thoughts and expression of the people in modern
democracies. The amendments made in various pieces of legislation and
the constitution itself are also treated as the tool in the hands of modern
people. Especially this can be seen in India during the post - Independence
period. As the amendments or the enactments in modern democracies are
also challenged and it can be said to be the example of the alert society i.e.
public opinion.

Conclusion :-
This paper throws light on the concept of public opinion came to limelight in the
wake of democracy. The governmental policies gradually became the function of
opinion rather than of force, and the means for the expressions of opinion like
constitutionally guaranteed liberties, elections, political parties etc., were at hand,
the role of public opinion in the government came to be generally recognized. The
theory of public opinion is thus a derivative from democracy as a form of
government. It the field of political dynamics, the significance of public opinion
lies in its ability to influence government.

The role of public opinion in a democracy is ultimately decided by the result of

the struggle between belief and fact. Owing to subtle manipulation of the

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opinion-forming processes by interested groups, a fundamental distinction has
taken place in recent times between what is and what people believe to be. Facts
are misrepresented without scruple, and appeals are made frequently to the blind
emotions and prejudices of the people. The process of corruption of facts becomes
complete when exclusively a powerful group or a capitalist controls the major
opinion-forming agencies like newspaper and radio. Thus public opinion helps to
make the democracy and government to, for and by the people.

Q.14 National Commission for Women.

Ans-
Introduction :-
The National Commission for Women was established in January 1992 under
the 1990 National Commission for Women Act. The National Human Rights
Commission was established in 1993 under the Protection of Human Rights
Act, 1993. The Protection of Human Rights Act, 1993 provides for the
constitution of a National Human Rights Commission and State Human
Rights Commission for better protection of Human Rights and enforcement
of the same. The National Human Rights Commission (NHRC) was set up in
October 1993. If is empowered to deal with all cases of human rights
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 violations by public servants. The powers of NHRC include inquiry into
violations of human rights or their abetment, review of constitutional and
legislative safeguards for the protection of human rights to ensure their of
constitutional and legislative safeguards for the protection of human rights to
ensure their effective implementation; undertaking research in human rights;
visiting jails and other places of custodial detention under the supervision of
Government; reviewing factors including terrorism which inhibit the
enjoyment of human rights; recommending remedial measures and
encouraging non- Governmental organizations and institutions working for
human rights. The NHRC has the powers of a civil court to summon persons
and record evidence and investigate both suomoto and individual complaints
and violations of human rights. Every proceeding before the Commission is a
judicial proceeding under the law.

It is said that the best way to know about society, a civilization and a culture, try
to know as much possible about the women. In India, women have come a long
way from the rare women scholars and sages of the Vedic age to the women in
different sectors of society and civilization today, such as the armed forces, arts,
information technology, politics and a number of similar sectors which have
traditionally been male dominated, while simultaneously balancing the roles of
wife, mother and daughter. While Indian women have fought against the
patriarchal Indian society and triumphed at many levels, cases of rape, dowry
deaths, female infanticide, sexual harassment at workplaces, female illiteracy, and
similar problems are still rampant in Indian society. It was in this backdrop that
the Committee on the Status of Women in India (CSWI) the establishment of the
National Commission for Women to fulfill the surveillance functions and to
facilitate redressal of grievances and to accelerate the socio-economic
development of women.

Impotance of the Comission-

Women as a class neither belong to a minority group nor are they regarded as a
backward class. India has traditionally been a patriarchal society and therefore
women have always suffered from social handicaps and disabilities. It thus
became necessary to take certain ameliorative steps in order to improve the
condition of women in the traditionally male dominated society.The Constitution
does not contain any provision specifically made to favor women as such.
Though Art. 15 (3), Art. 21 and Art. 14 are in favor of women; they are more
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general in nature and provide for making any special provisions for women,
while they are not in themselves such provisions. The Supreme Court through
interpretive processes has tried to extend some safeguards to women. Through
judgments in cases such as Bodhisattwa Gautam v. Subra Chakraborty ( AIR
1996 SC 922). and the Chairman Rly Board v. Chandrima Das( AIR 2000 SC 988).
case, where rape was declared a heinous crime, as well as the landmark judgment
in Visakha v. State of Rajasthan, (AIR 1997 SC 3011). the courts have tried to
improve the social conditions of Indian women. But these have hardly sufficed to
improve the position of women in India. Thus, in light of these conditions, the
Committee on the Status of Woman (India) as well as a number of NGOs, social
workers and experts, who were consulted by the Government in 1990,
recommended the establishment of a apex body for woman.

The Constitution of The Commission:

The National Commission for Women Act, 1990 (Act No. 20 of 1990 of
Government of India) constituted the National Commission for Women as a
statutory body. The first commission was constituted on 31st January 1992 with
Mrs. Jayanti Patnaik as the Chairperson.

The Act of 1990 under Section 3 provides for the constitution of the commission.
This section lays down that the commission will consist of one Chairperson, who
is committed to the cause of women, five members from various fields and a
member secretary who shall be an expert in the fields of management,
organizational structure, sociological movement or a, member of the civil service
of the Union. All the members of the commission are nominated by the Central
Government.
Each person holds office for a period of five years or till he attains the age of
seventy. At least one member each of the Commission must belong to a
Scheduled Caste or Scheduled Tribe. In addition to the abovementioned members
of the Commission, the Commission has the power to set up committees with
members from outside the Commission.

The Mandate of the Commission:

Section 10(1) of the Act of 1990 provides a fourteen-point mandate for the
National Commission for Women. A general overview of the mandate has been
provided and a few significant clauses have been discussed.

Broadly speaking the Commission's mandate can be divided under four heads –
(a) safeguard of rights of women granted by the constitution and laws, (b) study

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problems faced by women in the current day and make recommendations to
eradicate these problems, (c) evaluating the status of Indian women from time to
time and (d) funding and fighting cases related to women's rights violations.

(a) Safeguard Rights of Women:

these are enshrined in sub clauses (a) – (e) of Section 10 (1) of the Act. They expect
the Commission to examine the safeguards for women provided by the law and
the Constitution. The Commission is to submit reports about these safeguards
and make recommendations about the implementation of the same. The
Commission is also expected to review these safeguards periodically to identify
and remedy any lacunae and inadequacies. The Commission is also empowered
to take up cases involving the violation of the cases.

(b) Study of problems faced by women:

these are mainly enshrined in sub clauses (g) – (i) of Section 10 (1) of the Act.
According to these sub clauses, the Commission is to carry out studies involving
the problems arising out of discrimination against woman and provide remedies
for these problems. As per this part of the mandate, the Commission is also
expected to advise the government about the socio – economic development of
women based on these studies.

(c) Evaluating status of Indian women

sub clauses (j) – (n) of the aforementioned section of the Act deals with these
responsibilities of the Commission.
The Commission, according to these guidelines, has the responsibilities of the
evaluating the status of Indian women under the Union Government and State
Governments. It is to inspect and evaluate the conditions of detention homes and
other such facilities in which women may be detained and deal with the
appropriate authorities in order to improve the condition of such places. These
evaluations are to be submitted to the Government through periodic reports and
recommendations. Fighting cases related to women's rights violation: certain
clauses in the mandate also empower the Commission to take up cases related to
discrimination against women, women's right violation and fund cases which
involve the rights of a large number of women. Sub clause (f) of Section 3 of the
Act of 1990 empowers the Commission to take suo moto notice of matters relating
to women's right deprivation, non – implementation of laws enacted to protect
women and non – compliance of policies and guidelines for mitigating hardships
of women, in such matters the Commission is empowered to approach the
appropriate authorities and seek remedies.

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Functions of the Commission

Through this chapter the researcher will briefly outline the methods adopted by
the Commission in order to carry out the mandate discussed in 2.3. As violence
and discrimination against women is multi – faceted in nature, the Commission
has adopted a multi – pronged strategy to combat the problem. This strategy is
broadly divided into three categories – the counseling, the legal and the research
functions of the Commission.

Complaint And Counseling Functions:

The core unit of the Commission is considered to be the Complaint and
Counseling Cell and it processes the complaints received oral, written or suo
moto under Section 10 of the NCW Act. The complaints received relate to
domestic violence, harassment, dowry, torture, desertion, bigamy, rape and
refusal to register FIR, cruelty by husband, derivation, gender discrimination and
sexual harassment at work place. During 1999, the Commission received 4329
complaints related to the above types of crimes against women.

The number of complaints registered with this cell has increased from a total of
4293 in 1999 – 2000 to a total of 5462 in 2003 – 04. This increase may be interpreted
as a positive sign and one signaling the success of this wing of the Commission. It
also indicates the increasing trust that women are investing in the Commission as
a whole.

Legal Functions:

As mentioned in 2.3, a large part of the Commission's mandate is related to legal

research for safeguards of women, legal interventions, recommendations on bills
and similar matters relating to the legal system of India. The legal cell of the
Commission was set up in order to deal with these functions. The activities of this
cell can be divided into three categories: (a) legal amendments proposed (b) new
laws and bills proposed and (c) court interventions.

(a) Legal Amendments:

the Commission's mandate requires that it analyze and improve existing laws
from time to time. The Commission has proposed sixteen amendments till date
The commission has sought to amend the Indian Penal Code, 1860 in order to
curb the sale of minor girls; the Hindu Marriage Act, 1955, in order to omit

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epilepsy as grounds for divorce; the Dowry Prohibition Act of 1961, in order to
bring the problems of Dowry deaths in to the lime light and deal with them
appropriately and the NCW Act, 1990, in order to gain greater autonomy and
jurisdiction within the country. In addition to these there are a number of other
Acts and Bills, which the Commission has sought to, amend but due to the
paucity of space the researcher is unable to discuss them here.

(b) News Bills Proposed:

in the course of fourteen years the Commission has proposed a total of seven
bills and has drafted one convention for SAARC relating to trafficking of
women and children. Amongst other bills the Commission proposed the
Marriage Bill, 1994; the Criminal Laws (Amendment) Bill, 1994 (with
reference to child rape); the Criminal Laws (Amendment) Ordinance, 1996
and the Domestic Violence to Women (Prevention) bill, 1994. The Protection
of Women from Domestic Violence Bill was passed in 2005.

(c) Court Intervention:

the Commission has intervened in numerous court cases, in order help
women whose rights have been violated, of these cases the researcher will
only be able to mention few of the more prominent ones. The Commission
intervened in Bhateri gang rape case and supported the victim and provided
for her protection. In the Maimon Baskari's Nuh case the Commission fought
for the right of the victim to marry a person of her own choice and against out
dated customs. In the matter of Fakhruddin Mubarak Shaik v. Jaitunbi
Mubarak Shaik the Commission intervened to seek maintenance beyond the
iddat period for Muslim women. The Commission was also partly
responsible the actions taken in the Imrana and Marine Drive rape cases.

Conclusion-
The above mentioned causes have its both positives and negatives but every
shortcomings has its own way out. To overcome the aforementioned
shortcomings, it may be useful to incorporate the following suggestion:
# The Commission suggested that the chairperson of NCW be given the status
of the Union Cabinet Minister and the Members that of Minister of State. This
will put more power in the Commission's hands and thus its recommendations
will have a greater degree of force.
# The Commission must be granted the power to select its own members. If
needed a separate body, selected from within the Commission, should be
constituted in order to carry these functions.
# The Commission must be given allocated funds in the Union as well as the
State Budgets in order facilitate smooth functioning. Currently funds are only

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allocated at the Central level and not the state level.
# The atrocities in Jammu and Kashmir are common knowledge. Taking these
acts into account the Commission's presence in the region is quite vital and
should be allowed.

On this context we also have to see that how much the government implements
the above mentioned clauses and suggestions. More over its not only the duty
of the state but also it's the duty of the citizens as a whole to look into if such
miss conducts in out society is taking place or not. There should me more
public awareness and participation for the women oppression so as make the
work of the National Commission for Women more justifiable.

Q.15 Reform of Family law.

Ans-
Introduction :-
In the present century, the social and economic position of married women
has changed more drastically than in any previous periods. Every modern
state including India is taking an active, often a commanding part in the
regulation of family life.
Dowry Prohibition Act 1961, Special Marriage Act 1954, and 1955
Hindu Succession Act 1956, Hindu Maintenance and Adoption Act 1956 and
Hindu Minority and Guardianship Act 1956 have enacted after independence
(1947). Before the enactment of the above referred Acts and Hindu law was
uncodified and was based on the uncodified law consisting the local scripts
such as Smrithi, Vedas, Puranas and the local and religious customs. The
Codification of Hindu Law in Post independence period made vital influence
on family life.
The family is the small at end the most enduring social group within the
State. It is a well - known principles accepted by the philosophers, jurist and
political scientists that the closeness and intimacy of family ties make the
relationship between the state and family. A problem of special importance.
There was no place for the family in the life of the rules of planned republic. As
Saucretus pointed out that "these women should be all of them wives in
Common of these men and no male should like any women privately and that
children too, should be common and the parent should not know his own off -
springs nor the child its parents." This is the complete negation of the concept
of the family based on the privacy of relations between husband and wife and
their children.
Family law contains fundamental tensions and conflict which recent
social development have brought to surface and intensified. The major
problems which have arisen in the area of family law can be summed up in
three areas.

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 (a) The husband and wife relationship.
(b) The relationship of parents and children.
(c) The relationship of family to the State.
The contemporary crisis of family law results from the variety of actors
changing Social Philosophy, emphasis on the freedom of individualism,
transformation of the family in modern rationalised society. Position of
married woman, modern devise of the control and artificial incrimination.
Many of these functions are of Judicial or quasi - judicial nature and courts
acts as guardians of the weak and unprotected.
The principle that still dominates the marriage laws of the Western
Countries and even in India since independence is that of the permancy of
marriage union. But according to Hindu Marriage Act the marriages were just
a matter of religious custom observed by the various castes well
providingdissolution of marriage very few numbers of divorces were seen.
But after independence due to enactment of Hindu Marriage Act 1955, the
number of divorces increased and obviously the reasons are changed in social
philosophy, modern society, principle of equality reasoning the dignity and
prestige of women etc.

In June 2016 through a reference by the Government of India, the Law

Commissionwas entrusted with the task of addressing the issues concerning a
uniform civil code. The Law Commission of India has taken this opportunity
to address the ambiguity that has long surrounded the questions of personal
law and uniform civil code in India. This consultation paperhas been an
endeavour to understand, acknowledge and finally suggest potential
legislative actions which would address discriminatory provisions under all
family laws. In doing so, the Commission has endeavoured to best protect and
preserve diversity and plurality that constitute the cultural and social fabric of
the nation.

** Varouies Steps of Reformation of Family Law-

1-Single family court.
2-Divorce Center.
3-Marriage of same sex couple.
4-Child arrangenement Programe.
5-Revised Publice Law.
6-Fast Track finanacial remedy procedure.
7-Piolt scheme in the family Court.
8-Transperencey.
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Case law
The Supreme Court has held that Indian courts will not recognise a foreign
divorce decree if the divorce petition is not based on the substantive and
jurisdictional grounds provided for divorce under the Hindu Marriage Act 1955
and one of the nine grounds of divorce which must be satisfied (Y Narasimha Rao
and others v Y Venkata Lakshmi and others (1991) 3 SCC 451).
The Supreme Court held that a foreign divorce decree will not be recognised by
the Indian courts where all of the following apply (Y Narasimha Rao and others v Y
Venkata Lakshmi and others (1991) 3 SCC 451):

A party only technically satisfies the requirement of residence in a foreign

country with only the purpose of obtaining the divorce.

That party is neither domiciled in that state nor has an intention to make it their
home.

In Smt Satya v Teja Singh [1975] 2 SCR 1971,

the Supreme Court derecognised the decree of divorce of the foreign country on
the ground that one party obtained the divorce decree by fraud on the foreign
court by representing incorrect jurisdictional facts. The Apex Court held that the
concept of residence does not include temporary residence for the purpose of
obtaining a divorce.
It is held that marriages which take place in India can only be dissolved under
either the customary or statutory law in force in India. Therefore, when a foreign
judgment is founded on a jurisdiction or on a ground not recognised by such law,
it is in defiance of the law and is unenforceable in India. For the same reason,
such a judgment is also unenforceable under clause (f) of section 13 of the Civil
Procedure Code, since such a judgment is in breach of the matrimonial law in
force in India.
The Supreme Court has also held that "the jurisdiction assumed by the foreign
court as well as the grounds on which the relief is granted, must be in accordance
with the matrimonial law under which the parties are married. The exceptions to
this rule may be:
Where the matrimonial action is filed in the forum where the respondent is
domiciled or habitually and permanently resides, and the relief is granted on a
ground available in the matrimonial law under which the parties are married.

Where the respondent voluntarily and effectively submits to the jurisdiction of

the forum as discussed above and contests the claim, which is based on a ground
available under the matrimonial law under which the parties are married.

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 Definition of Dowry Prohibition Act 1961:
"Dowry" is now defined as any property or valuable security given or
agreed to be given directly or indirectly, (a) by one party to the marriage to
the other party to marriage or (b) by Parents of either to the marriage or by
any other person at or before or at any tiMe after the marriage" in connection
with the marriage of said parties.
A approved marriage among Hindus considered as Kanyadan. The
Varadakshina was a present to the bride - groom and obviously it constituted
his property. It need not be doubted that then the varadakshina was given out
of love and affection and with the feeling of honoring the groom, though its
quantum obviously varied in accordance with the financial position of the
father of the bride. It was given voluntarily and no compulsion was exercised.
It should also be clear that presents given to the bride by way of ornaments,
clothes and other articles as well as cash from the side of her father and
husband constituted her Stridhan. They were given to the bride by way of
love and affection. These were probably meant to provide her with a sort of
financial security in adverse circumstances. These two aspects of Hindu
Marriage, gifts to bride and bridegrooms got entangled and later on assumed
the frightening name of dowry for the obtaining of which compulsion
coercion and occasionally, force began to be exercised and ultimately most
Marriages become a bargain.
In course of time dowry became a wide spread evil and it has now
assumed menacing proportions. Surprisingly, it has spread to other
communities, which were traditionally non-dowry taking communities.
Cases have come to public notice where brides on account of their failure to
bring the promised or expected dowry have been beaten up kept without
food for days together, locked up in dingy rooms, tortured physically and
mentally, strangulated or burnt alive or led to commit suicide with a view
to eradicating the rampant social evil of dowry from the Indian Society, the
Parliament in 1961, passed the dowry prohibition Act which applies not
merely to Hindus but all people, Muslims, Christians, Parsis and Jews.
Dowry is a deep rooted social evil and legislation alone cannot
eradicate it. Legislation can only help the social movement for the eradication
of dowry. It is unfortunate that most of our social legislations are no more
than half - hearted efforts. Social legislation should not merely bark, but
should be able to bite. It does not appear that the dowry prohibition law is a
biting law.
Special Marriage Act 1954
This Act provides a special form of marriage in certain cases, for the
registration of such and certain other marriage and for divorce.

Hindu Marriages Act. 1955

This Act was enacted providing many new provisions about
marriage and divorce. Similarly the provisions of the judicial separation
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 and restitution of conjugal rights were also made. Thus, it can be
observed that the status of Female Hindu was raised and social approach
was taken in reference to her. The most important provision introduced
in this Act was that a wife may present petition for divorce if the
husband is having another wife alive at the time of presentation of
petition of the husband has been guilty of rape. The Parliament has
passed the Family Court Act 1984 and such courts are now established
throughout the country.
In the present century and particularly in post independence period
the social and economical position of the married woman has changed
more drastically due to the codification of Hindu law than in any
previous period. The matrimonial law reflects the social supremacy of the
husband.
The example about legal change in Hindu law in post -
independence period is raising an age of bridegroom up to twenty one
years and the age of bride to that of Eighteen years controlled the illegal
marriage in cradles. Thus, as the determination of minimum age is
emotionally neutral and instrumental are legislation has made a greater
impact. This legislation was necessary for abandoning the age old but
unnecessary customs as for as the uncodified Hindu law was concerned.
But legislation it can be observed sometimes makes adverse effect if it
relates to expressive and evaluative area of activity.
This law is suitably amended in 1976, considering the changed situations in
the society.
Hindu Succession Act which was enacted after independence has
also newly introduced several provisions which were in favour of the
female Hindu and this it balanced the equally between a male Hindu and
Female Hindu which was previously absent. Especially the provisions
about a female Hindu dying intestate is worth referring. The previous law
of customs which were existing was ignorant about the status of women.
The codification of Hindu Succession Act alongwith the other Act was
necessarily and it can be seen that the impact of law on moulding the
public opinion in this field was to a great extent successful.

Hindu Adoption and Maintenance Act, 1956:

This Act now a day became very important in the cases of claiming
maintenance from husband, in the case of dissolution of marriage. This
Act also provided a list of persons who can be called as dependent. It also
provides the provisions explaining the terms natural guardian
testamentary guardians etc. and their powers and duties etc. According
to this act a Hindu Wife is entitled to live separately from her husband
for - feting her claim to maintenance under certain situations.
Hindu Minority and Guardianship Act. 1956:

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 This act also provides for the position and power of natural guardian,
Provisions relating to legitimacy and other provisions regarding minors and
guardian prior to passing of this Act. The guardians and wards Act was
existing. The importance changes in Hindu Minority and Guardianship Act is
that according to section 13 the Court may removes a natural guardian if he is
unfit for the welfare of minor. I.e. welfare of Minor to be Paramount
consideration.
As per the change in the public opinion, in the society the area of
family law develops in every country. But especially in India due to various
social and economic problems various provisions were made. Even the social
security scheme in the modern society recognised the family as an important
unit and therefore, many provisions are made to strength the family. Public
opinion according to Dicey Dictate as the legitimate change only under the
peculiar conditions of an advanced civilisation. However, a constant
improvement especially in the sphere of family law is demanded irrespective
of time and place. As the State functions have extended to the provisions of
the minimum individual life especially for dependents the social interest in
the stability of marriage, an organised social community should be there
upon the wife's claim to maintenance.
It can be said that various provisions were embodied in the codified
Hindu Law for the improvement due to the pressure of the public opinion.

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Q.16 Plea Bargaining, Compounding and Payment of Compensation to
Victims.?

Ans-

Introduction :-

Plea bargaining is a pretrial negotiation between the accused and the prosecution
where the accused agrees to plead guilty in exchange for certain concessions by
the prosecution. It is a bargain where a defendant pleads guilty to a lesser charge
and the prosecutors in return drop more serious charges. It is not available for all
types of crime e.g. a person cannot claim plea bargaining after committing
heinous crimes or for the crimes which are punishable with death or life
imprisonment.

History of Plea Bargaining

In the Jury System, the need for plea bargaining was not felt because there was no
legal representation. Later on, in 1960 legal representation was allowed and the
need for Plea Bargaining was felt. Although the traces of the origin of the concept
of Plea Bargaining is in American legal history. This concept has been used since
the 19th century. Judges used this bargaining to encourage confessions.

Plea Bargaining in India

Plea Bargaining is not an indigenous concept of Indian legal system. It is a part of

the recent development of Indian Criminal Justice System (ICJS). It was
inculcated in Indian Criminal Justice System after considering the burden of long-
standing cases on the Judiciary.
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Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with
the concept of Plea Bargaining. It was inserted into the Criminal Law
(Amendment) Act, 2005. It allows plea bargaining for cases:

1. Where the maximum punishment is imprisonment for 7 years;

2. Where the offenses don’t affect the socio-economic condition of the

country;

3. When the offenses are not committed against a woman or a child below
14 are excluded

The 154th Report of the Law Commission was first to recommend the ‘plea
bargaining’ in Indian Criminal Justice System. It defined Plea Bargaining as an
alternative method which should be introduced to deal with huge arrears of
criminal cases in Indian courts.

Then under the NDA government, a committee was constituted which was
headed by the former Chief Justice of the Karnataka and Kerala High Courts,
Justice V.S.Malimath to tackle the issue of escalating number of criminal cases.
The Malimath Committee recommended for the plea bargaining system in India.
The committee said that it would facilitate the expedite disposal of criminal cases
and reduce the burden of the courts. Moreover, the Malimath Committee pointed
out the success of plea bargaining system in the USA to show the importance of
Plea Bargaining.

Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in
the parliament and finally it became an enforceable Indian law from enforceable
from July 5, 2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code
of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve
upon the existing Criminal Justice System in the country, which is inundate with
a plethora of criminal cases and overabundant delay in their disposal on the one
hand and very low rate of conviction in cases involving serious crimes on the
other. The Criminal Law (Amendment) Bill, 2003 focused on following key issues
of the criminal justice system:-
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(i) Witnesses turning hostile

(ii) Plea-bargaining

(iii) Compounding the offense under Section 498A, IPC (Husband or relative of
husband of a woman subjecting her to cruelty) and

(iv) Evidence of scientific experts in cases relating to fake currency notes.

Finally, it introduced Chapter XXIA Section 265A to 265L and brought the
concept of plea bargaining in India. The following are provisions which it added:-

Section 265-A (Application of Chapter) the plea bargaining shall be available to

the accused who is charged with any offense other than offenses punishable with
death or imprisonment or for life or of an imprisonment for a term exceeding to
seven years. Section 265 A (2) of the Code gives the power to notify the offenses
to the Central Government.

The Central Government issued Notification No. SO1042 (II) dated 11-7/2006
specifying the offenses affecting the socio-economic condition of the country.

Section 265-B (Application for Plea Bargaining)

A person accused of an offense may file the application of plea bargaining in

trails which are pending.

The application for plea bargaining is to be filed by the accused containing brief
details about the case relating to which such application is filed. It includes the
offences to which the case relates and shall be accompanied by an affidavit sworn
by the accused stating therein that he has voluntarily preferred the application,
the plea bargaining the nature and extent of the punishment provided under the
law for the offence, the plea bargaining in his case that he has not previously been
convicted by a court in a case in which he had been charged with the same
offence.

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 1. The court will thereafter issue the notice to the public prosecutor
concerned, investigating officer of the case, the victim of the case and
the accused of the date fixed for the plea bargaining.

2. When the parties appear, the court shall examine the accused in-camera
wherein the other parties in the case shall not be present, with the
motive to satisfy itself that the accused has filed the application
voluntarily.

Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down

the procedure to be followed by the court in mutually satisfactory disposition. In
a case instituted on a police report, the court shall issue the notice to the public
prosecutor concerned, investigating officer of the case, and the victim of the case
and the accused to participate in the meeting to work out a satisfactory
disposition of the case. In a complaint case, the Court shall issue a notice to the
accused and the victim of the case.

Section 265-D (Report of the mutually satisfactory disposition) This provision

talks about the preparation of the report of mutually satisfactory disposition and
submission of the same. Two situations may arise here namely

1. If in a meeting under section 265-C, a satisfactory disposition of the case

has been worked out, the report of such disposition is to be prepared by
the court. It shall be signed by the presiding officer of the Courts and all
other persons who participated in the meeting.

2. If no such disposition has been worked out, the Court shall record such
observation and proceed further in accordance with the provisions of
this Code from the stage the application under sub-section (1) of section
265-B has been filed in such case.

Section 265-E (Disposal of the case) prescribes the procedure to be followed in

disposing of the cases when a satisfactory disposition of the case is worked out.
After completion of proceedings under Section 265-D, by preparing a report
signed by the presiding officer of the Court and parties in the meeting, the Court
has to hear the parties on the quantum of the punishment or accused entitlement
of release on probation of good conduct or after admonition. Court can either
release the accused on probation under the provisions of Section 360 of the Code
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or under the Probation of Offenders Act, 1958 or under any other legal provisions
in force or punish the accused, passing the sentence. While punishing the
accused, the Court, at its discretion, can pass sentence of minimum punishment,
if the law provides such minimum punishment for the offenses committed by the
accused or if such minimum punishment is not provided, can pass a sentence of
one-fourth of the punishment provided for such offense. ”

Section 265-F (Judgment of the Court) talks about the pronouncement of

judgment in terms of mutually satisfactory disposition.

Section 265-G (Finality of Judgment) says that no appeal shall be against such
judgment but Special Leave Petition (Article 136) or writ petition (under Article
226 or 227) can be filed.

Section 265-H (Power of the Court in Plea Bargaining) talks about the powers of
the court in plea bargaining. These powers include powers in respect of bail, the
trial of offenses and other matters relating to the disposal of a case in such court
under Criminal Procedure Code.

Section 265-I (Period of detention undergone by the accused to be set off

against the sentence of imprisonment) says that Section 428 of CrPC is
applicable for setting off the period of detention undergone by the accused
against the sentence of imprisonment imposed under this chapter.

Section 265-J (Savings) talks about the provisions of the chapter which shall have
effect notwithstanding anything inconsistent therewith contained in any other
provisions of the Code and nothing in such other provisions shall be construed to
contain the meaning of any provision of chapter XXI-A

Section 265-K (Statement of the accused to be used) specifies that the statements
or facts stated by the accused in an application under section 265-B shall not be
used for any other purpose except for the purpose as mentioned in the chapter.

Section 265-L (Non-application of the chapter) makes it clear that this chapter
will not be applicable in case of any juvenile or child as defined in Section 2(k) of
Juvenile Justice (Care and Protection of Children) Act, 2000.

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**Types of Plea Bargaining

Plea Bargaining is generally of three types namely:-

1. Sentence bargaining;

2. Charge bargaining;

3. Fact bargaining.

Concept Sr.No. Type Meaning

In this type of bargaining the main motive is to get a

Sentence lesser sentence. In Sentence bargaining, the defendant
1.
bargaining agrees to plead guilty to the stated charge and in return,
he bargains for a lighter sentence.

This kind of plea bargaining happens for getting less

severe charges. This the most common form of plea
Plea Charge bargaining in criminal cases. Here the defendant agrees
2.
Bargaining bargaining to plead guilty to a lesser charge in consideration of
dismissing greater charges. E.g. Pleading for
manslaughter for dropping the charges of murder.

This is generally not used in courts because it is alleged

Fact to be against Criminal Justice System. It occurs when a
3.
bargaining defendant agrees to stipulate to certain facts in order to
prevent other facts from being introduced into evidence.

Plea Bargaining and Judicial Pronouncements

Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929),

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The Hon’ble Supreme Court criticized the concept of Plea Bargaining and said
that it introduces upon the society’s interests.

In Kasambhai vs State of Gujarat (1980 AIR 854) & Kachhia Patel Shantilal
Koderlal vs State of Gujarat and Anr,

the Apex court said that the Plea Bargaining is against public policy. Moreover, it
regretted the fact that the magistrate accepted the plea bargaining of accused.
Furthermore, Hon’ble Court described this concept as a highly reprehensible
practice.

The Court also held that practice of plea bargaining as illegal and
unconstitutional and tends to encourage the corruption, collusion and pollute the
pure fount of justice.

Thippaswamy vs State of Karnataka, [1983],

the Court said that inducing or leading an accused to plead guilty under a
promise or assurance would be violative of Article 21 of the Constitution.

The Court also stated that “In such cases, the Court of appeal or revision should
set aside the conviction and sentence of the accused and remand the case to the
trial court so that the accused can, if he so wishes defend himself against the
charge and if he is found guilty, proper sentence can be passed against him”.

In State of Uttar Pradesh vs Chandrika 2000 Cr.L.J.),

the Apex Court disparaged the concept of plea bargaining and held this practice
as unconstitutional and illegal. Here the Hon’ble Court was of the view that on
the plea bargaining Court cannot basis of disposing of criminal cases. The case
has to be decided on the merit. In furtherance of the same, court said that if the
accused confesses his guilt, he must be given the appropriate sentence as required
by the law.

In the State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709,

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the Court acknowledged the importance of plea bargaining and said that every
“plea of guilty” which is construed to be a part of the statutory process in the
criminal trial, should not be understood as a “plea bargaining” ipso facto. It is a
matter of matter and has to be decided on a case to case basis. Considering the
dynamic nature of law and society, the court said that the very object of the law is
to provide an easy, cheap and expeditious justice by resolving disputes.

Advantages and Disadvantages of Plea Bargaining

A plea bargain is an agreement that occurs between a prosecutor and a

defendant. It is a way to have a defendant plead either no contest or guilty to
charges that are brought against them without the cost of a trial. Prosecutors will
usually agree to reduce charges, recommend lower sentence lengths, or make
some other compromise in exchange for the plea.

The primary advantage of plea bargaining is that it speeds up the processes of the
justice system. A criminal trial will take several days in many circumstances.
Some can take weeks. The OJ Simpson trial for the murders of Nicole Brown
Simpson and Ronald Goldman was televised for 135 days. A plea bargain makes
it possible to skip this and go straight to a judge to discuss sentencing.

The primary disadvantage of plea bargaining is that it can still put innocent
people in jail. To counter this issue, California voters passed Proposition 8 in 1982
to limit when plea bargaining could occur so that people who were innocent
didn’t feel like they needed to gamble with going to trial.

Here are some additional advantages and disadvantages of plea bargaining to

take a look at today.

List of the Advantages of Plea Bargaining

1. It removes uncertainty from the legal process.

Defendants who take a plea bargain eliminate the uncertainty that a trial may
bring. It is also a way to take away the maximum sentence that could be imposed
if they were found guilty by a judge or a jury. In the United States, nearly 500,000
people are held in prison with charges, but are awaiting trial, which means they
do not have a conviction. Plea bargaining speeds up this process.

2. It creates certainty for a conviction.

Prosecutors are also gambling when they take a defendant to trial. There is
always a chance that the jury will find the defendant not guilty. By agreeing to a
plea bargain, it creates certainty for a conviction. It gets that person off the street
or assigns a penalty that can still bring a measure of justice. That allows
prosecutors to pursue other cases because they have more time.

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3. It can be an effective negotiating tool.
One way to secure witnesses for a large case is to offer a plea bargain that
includes testifying against another person. This process allows prosecutors to put
everyone involved in a serious case into prison and allows them to pursue the
maximum sentence against the person or people they feel are most responsible
for a crime when it occurs.

4. It provides more resources for the community.

If a case is taken to trial, every police officer involved in the investigation that led
to charges may be asked to testify during the proceeding. Law enforcement
officers from other agencies may be called upon. Psychologists may be asked to
perform evaluations over a person’s competency. In the United States, the NCJRS
reports that the cost of prosecuting and defending a drug offender in the criminal
justice system may be over $70,000 per incident. If there are just 10 cases like this,
more than $700,000 in taxpayer funds will be spent. A plea bargain could reduce
this cost to $4,200 per case.

5. It reduces population levels in local jails.

Many who are awaiting trial are kept in jails at the local level. These jails are
usually run by city or county officials and provide little in the way of
rehabilitation, education, or therapy. They are holding centers with a bed, meals,
and not much else. With a plea bargain moving cases through the criminal justice
system faster, it becomes easier to give people the resources they need if they
wish to make changes in their lives.

List of the Disadvantages of Plea Bargaining

1. It removes the right to have a trial by jury.

In the United States, every person has a Constitutional right to have a trial by
jury. Offering a plea bargain to avoid this trial may seem like a coercive attempt
to waive those rights. Pressuring a defendant into accepting a plea deal could be
deemed illegal. A defendant must always have the right to take their case to trial
for a plea bargain to be an effective tool.

2. It may lead to poor investigatory procedures.

Since 90% of cases in many jurisdictions go to a plea bargain instead of a trial,
there is an argument made that this concept leads to lackluster investigation
practices. Attorneys and law enforcement officials may not spend time to prepare
a case because they have an expectation that it will plead out. Instead of trying to
secure justice, the goal is to make a deal, and it could be argued that expecting a
deal really isn’t justice.

3. It still creates a criminal record for the innocent.

An innocent person may agree to a plea bargain to cut their losses. That
agreement means they will have a criminal record. They may be asked to serve
time in prison. There may be fines or restitution to pay. Even if a plea bargain

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isn’t accepted, there may be legal expenses to pay that may be greater than the
cost of what a bargain offers, which leads to an acceptance of a deal.

4. Judges are not required to follow a plea bargain agreement.

The prosecutor and defendant may agree to a plea bargain, but a judge can void
that agreement. A judge is not usually required to follow a plea bargain. They can
impose longer sentences or decide that no sentence should be imposed. A judge
can also require a case to go to trial if they feel like a plea bargain is being offered
in bad faith.

5. Plea bargains eliminate the chance of an appeal.

If a case goes to trial and a defendant loses, there may be several grounds upon
which an appeal may be filed. Because a plea bargain requires a defendant to
plead guilty to the charges, even though they are reduced, it eliminates the ability
to file an appeal in almost any circumstance.

6. It provides soft justice for the guilty.

In many circumstances, a plea bargain provides a lighter sentence for someone,
even if they may be guilty. It can be treated as an escape route for a prosecutor.
Some may argue that a guilty plea and a guaranteed sentence is not the same as
being found guilty and having an accurate sentence imposed.

The advantages and disadvantages of plea bargaining may get criminals off the
streets, but it could also put innocent people into prison. It opens up a court
schedule but changes the effectiveness of the criminal justice system.

Conclusion :-

The concept of plea bargaining is not entirely new in India. Indian has already
recognized it when it got its constitution in 1950. Article 20(3) of Indian
constitution prohibits self-incrimination. People accuse plea bargaining of
violatory of the said article. But with the passage of time the considering the
encumbrance on the courts, the Indian court has felt the need of Plea bargaining
in Indian legal system. When a change is brought it is hard to accept it initially
but society needs to grow so is our legal system. Everything has advantages and
disadvantages and both have to be analyzed in order reach a sound conclusion.
Rejecting something only on the basis of its disadvantages would not be justified
in any case. The concept of plea bargaininsg is evolving in India and it is not

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appropriate to expect it to be perfect. It can only be improved by debate,
discussions, and discourses.

Q.17 GENDER INJUSTICE AND ITS VARIOUS FORM

Ans-

Introducton :-

Man and woman are both equal and both plays a vital role in the creation and
developmentof their families in a particular and the society in general. Indeed,
the struggle for legal equality has been one of the major concerns of the women’s
movement all over the world. In India, since long back, women were considered
as an oppressed section of the society and they were neglected for centuries.
During the national struggle for independence, Gandhi gave a call of
emancipation of women. He wrote – :I am uncompromising in the matter of
women’s rights. The difference in sex and physical form denotes no difference in
status. Woman is the complement of man, and not inferior". Thus, the first task in
post-independent India was to provide a constitution to the people, which would
not make any distinctions on the basis of sex. The preamble of constitution
promises to secure to all its citizens- "Justice- economical, social, and political".

The constitution declares that the equality before the law and the equal protection
of laws shall be available for all . Similarly, there shall be no discrimination
against any citizen on the ground of sex . Article 15(1) guarantees equalities of
opportunities for all citizens in matters of employment. Article 15(3) provides that
the state can make any special provisions for women and children. Besides,
directive principle of state policy which concern women directly and have a
special bearing on their status directly and have a special bearing on their status
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include Article 39(a) right to an adequate means of livelihood; (d) equal pay for
equal wok both men and women, (e) protection of health and strength of workers
–men, women, children and Article 42 provides for just and humane conditions
of work and maternity relief.

It is really important to note that though the Constitution of India is working

since more than fifty-seven years – the raising of the status of women to one of
equality, freedom and dignity is still a question mark.

In India, since independence, a number of laws have been enacted in order to

provide protection to women. For instance the Dowry prohibition Act 1961, The
Equal Remuneration Act 1986, The Hindu Marriage Act 1956, The Hindu
Succession Act 1956, The Muslim Women (Protection of Rights on Divorce) Act,
1986, the commission of Sati (prevention) Act 1987, Protection of the Women from
Domestic Violence Act 2005, etc. But, the laws have hardly implemented in their
letter and spirit.

**Types of Gender Inequalities

There are many kinds of gender inequality or gender disparity which are as
follows:

1. Natality inequality:

In this type of inequality a preference is given for boys over girls that many male-
dominated societies have, gender inequality can manifest itself in the form of the
parents wanting the newborn to be a boy rather than a girl. There was a time
when this could be no more than a wish (a daydream or a nightmare, depending
on one's perspective), but with the availability of modern techniques to determine
the gender of the foetus, sex-selective abortion has become common in many
countries. It is particularly prevalent in East Asia, in China and South Korea in
particular, but also in Singapore and Taiwan, and it is beginning to emerge as a
statistically significant phenomenon in India and South Asia as well.

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2. Professional or Employment inequality:

In terms of employment as well as promotion in work and occupation, women

often face greater handicap than men. A country like Japan and India may be
quite egalitarian in matters of demography or basic facilities, and even, to a great
extent, in higher education, and yet progress to elevated levels of employment
and occupation seems to be much more problematic for women than for men.
The example of employment inequality can be explained by saying that men get
priority in seeking job than women.

3. Ownership inequality:

In many societies the ownership of property can also be very unequal. Even basic
assets such as homes and land may be very asymmetrically shared. The absence
of claims to property can not only reduce the voice of women, but also make it
harder for women to enter and flourish in commercial, economic and even some
social activities. This type of inequality has existed in most parts of the world,
though there are also local variations. For example, even though traditional
property rights have favoured men in the bulk of India.

4. Household inequality:

There are often enough, basic inequalities in gender relations within the family or
the household, which can take many different forms. Even in cases in which there
are no overt signs of anti-female bias in, say, survival or son-preference or
education, or even in promotion to higher executive positions, the family
arrangements can be quite unequal in terms of sharing the burden of housework
and child care. It is, for example, quite common in many societies to take it for
granted that while men will naturally work outside the home, women could do it
if and only if they could combine it with various inescapable and unequally
shared household duties. This is sometimes called "division of labour," though
women could be forgiven for seeing it as "accumulation of labour." The reach of
this inequality includes not only unequal relations within the family, but also
derivative inequalities in employment and recognition in the outside world. Also,
the established fixity of this type of "division" or "accumulation" of labour can
also have far-reaching effects on the knowledge and understanding of different
types of work in professional circles.

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5. Special opportunity inequality:

Even when there is relatively little difference in basic facilities including

schooling, the opportunities of higher education may be far fewer for young
women than for young men. Indeed, gender bias in higher education and
professional training can be observed even in some of the richest countries in the
world, in India too. Sometimes this type of division has been based on the
superficially innocuous idea that the respective "provinces" of men and women
are just different.

**Issues that Need Investigation

This is the issue which needs some investigation. The problems out coming are as
follows:

(1) Under nourishment of girls over boys:

At the time of birth, girls are obviously no more nutritionally deprived than boys
are, but this situation changes as society's unequal treatment takes over from
nature's non-discrimination

There has, in fact, been plenty of aggregative evidence on this for quite some time
now. But this has been accompanied by some anthropological scepticism of the
appropriateness of using aggregate statistics with pooled data from different
regions to interpret the behaviour of individual families. However, there have
also been some Detailed and concretely local studies on this subject, which
confirm the picture that emerges on the basis of aggregate statistics. One case
study from India, performed in 1983, involved the weighing of every child in two
large villages. The time pattern that emerged from this micro study, which
concentrated particularly on weight-for-age as the chosen indicator of nutritional
level for children under five, brings out clearly how an initial condition of broad
nutritional symmetry turns gradually into a situation of Significant female
disadvantage.

2) High incidence of maternal under nourishment:

In South Asia mostly in India, maternal under nutrition is more common than in
most other regions of the world. Comparisons of Body Mass Index (BMI), which

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is essentially a measure of weight for height, bring this out clearly enough, as do
statistics of such consequential characteristics as the incidence of anaemia.

(3) Prevalence of low birth weight:

In South Asia, as many as 21 per cent of children are born clinically underweight
(in accepted medical standards) - more than in any other substantial region in the
world.17. The predicament of being low in weight in childhood seems often
enough to begin at birth in the case of South Asian children. In terms of weight
for age, South Asia has around 40 to 60 per cent children undernourished
compared with 20 to 40 per cent under nourishment even in sub-Saharan Africa.
The children start deprived and stay deprived.

(4) High incidence of cardiovascular diseases:

South Asia stands out as having more cardiovascular diseases than any other
part of the third world. Even when other countries, such as China, have greater
prevalence of the standard predisposing conditions, the Indian population seems
to have more heart problems than these other countries have. It is not difficult to
see that the first three observations are very likely causally connected. The neglect
of the care of girls and of women in general and the underlying gender bias that
they reflect would tend to yield more maternal under nourishment, and through
that more foetal deprivation and distress, underweight babies, and child under
nourishment. But what about the last observation - the higher incidence of
cardiovascular diseases among South Asian adults? In this it has been shown that
low birth weight is closely associated with higher incidence, many decades later,
of several adult diseases, including hypertension, glucose intolerance, and other
cardiovascular hazards.

Focusing on India

While there is something to cheer in the developments I have just been

discussing, and there is considerable evidence of a weakened hold of gender
disparity in several fields in the subcontinent, there is also, alas, some evidence of
a movement in the contrary direction, at least in one aspect of gender inequality,
namely, natality inequality. This has been brought out particularly sharply by the
early results of the 2001 decennial national Census of India, which are now
available. Early results indicate that even though the overall female to male ratio
has improved slightly for the country as a whole (with a corresponding reduction
of the proportion of "missing women"), the female-male ratio for children has had
a substantial decline. For India as a whole, the female-male ratio of the
population under age 6 has fallen from 94.5 girls for hundred boys in 1991 to 92.7
girls per hundred boys in 2001.

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While there has been no such decline in some parts of the country (most notably
Kerala), it has fallen very sharply in others, such as Punjab, Haryana, Gujarat and
Maharashtra, which are among the richer Indian States. Taking together all the
evidence that exists, it is clear that this change reflects not a rise in female child
mortality, but a fall in female births vis-à-vis male births, and is almost certainly
connected with increased availability and use of gender determination of
foetuses. Fearing that sex-selective abortion might occur in India, the Indian
Parliament banned some years ago the use of sex determination techniques for
foetuses, except when it is a by-product of other.

Necessary medical investigation. But it appears that the enforcement of this law
has been comprehensively neglected. This face of gender inequality cannot,
therefore, be removed, at least in the short run, by the enhancement of women's
empowerment and agency, since that agency is itself an integral part of the cause
of natality inequality. Policy initiatives have to take adequate note of the fact that
the pattern of gender inequality seems to be shifting in India, right at this time,
from mortality inequality (the female life expectancy at birth is by now two years
higher than male life expectancy in India) to natality inequality. Indeed, there is
clear evidence that traditional routes of changing gender inequality, through
using public policy to influence female education and female economic
participation, may not serve as a path to the removal of natality inequality.

A sharp pointer in that direction comes from countries in East Asia, which all
have high levels of female education and economic participation. Despite these
achievements, compared with the biologically common ratio across the world of
95 girls being born per hundred boys, Singapore and Taiwan have 92 girls, South
Korea only 88, and China a mere 86. In fact, South Korea's overall female-male
ratio for children is also a meagre 88 girls for 100 boys and China's 85 girls for 100
boys. In comparison, the Indian ratio of 92.7 girls or 100 boys (though lower than
its previous figure of 94.5) still looks far less unfavourable.

However, there are more grounds for concern than may be suggested by the
current all-India average. First, there are substantial variations within India, and
the all-India average hides the fact that there are States in India where the female-
male ratio for children is very much lower than the Indian average. Second, it has
to be asked whether with the spread of sex-selective abortion, India may catch up
with - and perhaps even go beyond - Korea and China. There is, in fact, strong
evidence that this is happening in a big way in parts of the country.

There is, however, something of a social and cultural divide across India, splitting
the country into two nearly contiguous halves, in the extent of anti-female bias in
natality and post-natality mortality. Since more boys are born than girls

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everywhere in the world, even without sex-specific abortion, we can use as a
classificatory benchmark the female-male ratio among children in advanced
industrial countries. The female-male ratio for the 0-5 age group is 94.8 in

**Measures To Solve Gender Inequality

Every problem has its own solution elsewhere or what ever the problem is? Like
this phenomenon this problemshas many measures out of which some of the
simple one are stated below (except legislative and judicial Solutions).

1-Changes at District level mechanism:

A clear cut administrative should be made available at the district level for
monitoring and reviewing the incidence of inequality against women. This
district level machinery headed by District Magistrate should consist of
representatives of police, prosecution machinery, judiciary and the
representatives of prominent individuals of women’s organizations in the
Districts. This committee should review progress of investigation and
prosecution. At least one special cell should be created at the district level for
ensuring better registration and progress of investigation and monitoring of
crimes against gender equality. This special cell should network with community
groups and women’s organizations and help to create an atmosphere in which
people would feel encouraged to freely report the cases of gender injustice. At
present, most, non-reporting of the cases is due to lack of confidence in
enforcement machinery.

The reporting of violence against women from the Thana to the district level and
from district level to the state level gets obscured in the overall mass and
complexities of the currently prescribed reporting system. Specific format should
be created and implemented for reporting on gender-related crimes.

2-Changes at State level Mechanism:

Similarly, like District level mechanism there should be State level machinery at
the State level in which there should be special entry for those cases which needs
prompt actions. This institution will make a full control over the district level
machinery. So that there should nit be any corruption or fraud with innocent
persons.

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3-Law of Torts:

An area of civil wrong is tort law. Tort law is probably one of the most
underutilised areas of the law with respect to the problem of gender injustice. The
torts that are directly applicable are:
Assault
Battery
Unlawful imprisonment
Nuisance
Tort of harassment
Tort of Medical pre- natal test
It means that there can be punishment under tort law also.

4-Sensitization of Criminal Justice system:

The police officers, prosecutors, and judges at all levels of hierarchy need to be
exposed to the gender equality education which would enlighten them on
existing assumptions, myths and stereotypes of women and how these can
interfere with fair and equitable administration of justice. Judicial system should
comprise of all types of officers i.e. from judiciary i.e. judges, police officers and
which should take immediate action in serious cases.

5. Family Law: Another of wrong is family law also. In this accused can be
punished under Domestic Violence Act, 2005 and Dowry Prohibition Act, 1987
other laws relating to family disputes. The suit/ case can be filed for domestic
violence or any other household wrong.

Conclusion-
The most significant factor in continued use of law to enforce patriarchal
privilege is that men still control not only the legal process and the interpretation
of laws, but also the subject matter and vantage point of law. If the subject matter
of law is male concerns and if the perspective employed within the legal process
are those of men, then women should actually have no reason to expect that mere
reform of existing law will materially improve the condition of women. This is
particularly true when attempts to improve the statutes of women are made
through incremental reforms that are not grounded in an understanding of how
women’s oppressions are constructed. Reforms of rape law will not materially
improve the status of women when the point of rape laws is their no
enforcement.

It has been shown that law is strictly restricted in it capacity to deliver gender
justice, which in itself is contingent on the nature of law and its functioning. In
this connection it is worthwhile to recall that the law itself is not a monolithic
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entity, which simply progresses or regresses.

Historically, the development of law has been an uneven one. That is to say, more
than not, what law promises on paper cannot carry through in reality. That is
why law-as-legislation and law-in-practice are most of the time in contradiction
with each other. To cite an example, the Indian constitution explicitly enshrines
formal equality for women. However, the lives and experiences of India women
relentlessly continue to be characterized by substantive inequality, inequity and
discrimination.

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Q. 18 Uniform Civil Code
Ans-
Introduction:
The mere three words and the nation breaks into hysterical jubilation and
frantic wailing. These three words are enough to divide the nation into two
categories politically, socially and religiously. Politically, the nation is
divided as BJP, which propagates implementation of the Uniform Civil Code
(hereinafter referred to as the UCC) and the non BJP including the Congress
party, Samajwadi party, who are against the implementation of the UCC.
Socially, the intelligentsia of the country, who analyse logically the pros and
cons of the UCC and the illiterate who have no opinion of their own and
succumb to the political pressure are atopposite poles. And, religiously, there
is a dangerous widening schism between the majority Hindus and the minority
community mostly the Muslims. Being a law student, I would like to consider
the legal implications of UCC.
I strongly support the crusade for the implementation of UCC and
homogenising the personal laws. I support it, not because of any bias, but
because it is the need of the hour. It is high time that India had a uniform
law dealing with marriage, divorce, succession, inheritance and
maintenance.

Indian Constitutional Law: Uniform Civil Code -

Art. 44 require the state to strive to secure for the citizens a uniform civil
code throughout India. An objection was taken to this provision in the
constituent Assembly by several Muslim members who apprehended that
their personal law might be abrogated. this objection was met by pointing out
(i) that Indian had already achieved a uniformity of law over a vast area; (ii)
that though there was diversity in personal laws, there was nothing sacrosanct
about them; (iii) the secular activities, such as, inheritance covered by personal
laws should be separated from religion; (iv) that a uniform law applicable to all
would promote national unity; and (v) that no legislature would forcibly
amend any personal law in future if people were opposed to it.
In this connection, reference may also be made to the discussion under Art. 25
which guarantees freedom of conscience and profession, practice and
propagation of religion. However, secular activity associated with religious
practice is exempted from this guarantee. It could therefore plausibly be argued
that personal laws pertain to secular activities and hence fall within the
regulatory power of the state.

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The codification of Muslim law still remains a sensitive matter though
enlightened Muslim opinion appears to favour such a step. It is necessary that
law be divorced from religion.
No much progress has so far been made towards achieving the ideal of a
Uniform Civil Code which still remains a distant dream. The only tangible step
taken in this direction has been the codification and secularisation of Hindu Law.
Reviewing the various laws prevailing in the area of marriage in India, the
Supreme Court has said in Ms. Jorden Diengdeh V/s. S.S. Chopra (A.I.R. 1985
)"The Law relating to judicial separation, divorce and nullity of marriage is far,
far from Uniform."Surely the time has now come for a complete reform of the
law of marriage and make a uniform law applicable to all people irrespective
of religion or caste - we suggest that the time has come for the intervention of
the legislature in these matters to provide for a uniform code of marriage
anddivorce ..."
"Muslim husband is liable to pay maintenance to the divorced wife beyond
the iddat period". A ruling of the Supreme Court in Mohd. Ahamad Khan V.
Shah Banu Begum (A.I.R. 1985). The orthodox Muslim opinion has
characterised this ruling as anti -shariat while liberal opinion accepts the ruling
as progressive.
The court has regretted that art. 44 has remained "dead letter." The court has
emphasized. "A common Civil code will help the cause of national integrationby
removing disparate loyalties to laws which have conflicting ideologies." The
court appreciates the difficulties involved in bringing persons of different faiths
and persuasions on a common platform, but, nevertheless, the court has said, "a
beginning has to be made if the constitution is to have any meaning.
With the enactment of uniform code, secularism will be strengthened, much of
the present day separation and dividedness between various religious groups in
the country will disappear, and India will emerge as a much more cohesive and
Integrated Nation.
The Uniform Civil Code (U.C.C.) should apply to all men and women of all
communities. The U.C.C. cannot provide for any option, exception of
exemption for any class or section of people, or any community or any
minority based on race or religion only. If the U.C.C. does not apply to all
persons of all communities, it can neither be common nor uniform, what to say
compulsory. If it is made optional it will not be uniform. Its application cannot
be made conditional on adoption by any community at its option. This must
mean a community veto. No community can veto its application. If the U.C.C.
si not applied to the persons professing the Islamic faith until the Muslim
community opts for it, the constitutional directive shall be observed only in its
breach.
The resistance to common law of Uniform Codes comes mainly form the
religious minorities, particularly the Muslims, and small section of the Sikhs
besides the tribal communities which very appropriately want to preserve their
distinct culture and customs.

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Case law:

Recently, the Supreme Court of India again called for a UCC. The
Supreme Court first directed the Parliament to frame a UCC in the
year 1985 in the case ofMohammad Ahmed Khan V/s Shah Banu
Begum Popularly known as the Shah Bano case. In this case, a
penurious Muslim woman claimed for maintenance from her
husband under Section 125 of the Code of Criminal Procedure
.after she was given triple talak from him. The Supreme Court
held that the Muslim woman have a right to get maintenance
from her husband under Section 125. The Court also held that
Article 44 of the Constitution has remained a dead letter. The
then Chief Justice of India Y.V. Chandrachud observed that; "A
common civil code will help the cause of national integration by
removing disparate loyalties to law which have conflicting ideologies"
After this decision, nationwide discussions, meetings, and agitation were
held. The then Rajiv Gandhi led Government overturned the Shah Bano
case decision by way of Muslim Women (Right to Protection on Divorce)
Act, 1986 which curtailed the right of a Muslim woman for maintenance
under Section 125 of the Code of Criminal Procedure. The explanation
given for implementing this Act was that the Supreme Court had merely
made an observation for enacting the UCC, not binding on the government
or the Parliament and that there should be no interference with the
personal laws unless the demand comes from within.
The second instance in which the Supreme Court again directed the government
of Article 44 was in the case of Saria Mudga V/s Union Of India in this case,
the question was whether a Hindu husband, married under the Hindu
law, by embracing Islam, can solemnise second marriage The Court held
that a Hindu marriage solemnised under the Hindu law can only be
dissolved on any of the grounds specified under the Hindu Marriage Act,
1955. Conversion to Islam and Marrying again would not, by itself,
dissolve the Hindu marriage under the Act. And, thus, a second marriage
solemnised after converting to Islam would be an offence under Section
494 of the Indian Penal Code.

Justice Kuldip Singh also opioned that Article 44 has to be retrieved from the
cold storage where it is lying since 1949. The Hon'ble Justice referred to the
codification of the Hindu personal law and held,

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"Where more then 80 percent of the citizens have already been brought under
the codified personal law there is no justification whatsoever to keep in
abeyance, any more, the introduction of the 'uniform civil code' for all the
citizens in the territory of India."
The Supreme Court's latest reminder to the government of its Constitutional
obligations to enact a UCC came in July 2003when a Christian priest knocked
the doors of the Court challenging the Constitutional validity of Section 118 of
the Indian Succession Act. The priest from Kerala, John Vallamatton filed a writ
petition in the year 1997 stating that Section 118 of the said Act was
discriminatory against the Christians as it imposes unreasonable restrictions on
their donation of property for religious or charitable purpose by will. The
bench comprising of Chief Justice of India V.N. Khare, Justice S.B. Sinha and
Justice A.R. Lakshamanan struck down the Section declaring it to be
unconstitutional. Chief Justice Khare stated that,
"We would like to State that Article 44 provides that the State shall endeavour to
secure for all citizens a uniform civil code throughout the territory of India It is a
matter of great regrets that Article 44 of the Constitution has not been given
effect to. Parliament is still to step in for framing a common civil code in the
country. A common civil code will help the cause of national integration by
removing the contradictions based on ideologies."
Thus, as seen above, the apex court has on several instances directed the
government to realise the directive principle enshrined in our Constitution and
the urgency to do so can be inferred from the same.

,Secularism Vs. UCC:

The spine of controversy revolving around UCC has been secularism and the
freedom of religion enumerated in the Constitution of India. The preamble of
the Constitution states that India is a "secular democratic republic" This means
that there is no State religion. A secular State shall not discriminate against
anyone on the ground of religion. A State is only concerned with the relation
between man and man. It is not concerned with the relation of man with God.
It does not mean allowing all religions to be practiced. It means that religion
should not interfere with the mundane life of an individual.

As per Justice Jeevan Reddy, in case S.R. Bommai v/s Union Of India it was
held that religion is the matter of individual faith and cannot be mixed with
secular activities. Secular activities can be regulated by the State by enacting a
law.
In India, there exist a concept of "positive secularism" as distinguished
from doctrine of secularism accepted by America and some European states
i.e. there is a wall of separation between religion and State. In India,
positive secularism separates spiritualism with individual faith. The reason
is that America and the European countries went through the stages of
renaissance,reformation and enlightenment and thus they can enact a law
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stating that State shall not interfere with religion. On the contrary, India has not
gone through these stages and thus the responsibility lies on the State to
interfere in the matters of religion so as to remove the impediments in the
governance of the State.
Articles 25 and 26 guarantee right to freedom of religion. Article25 guarantees
to every person the freedom of conscience and the right to profess practice and
propagate religion. But this right is subject to public order, morality and health
and to the other provisions of Part III of the Constitution. Article 25 also
empowers the State to regulate or restrict any economic, financial, political or
other secular activity, which may be associated with religious practice and also to
provide for social welfare and reforms. The protection of Articles 25 and26 is not
limited to matters of doctrine of belief. It extends to acts done in pursuance of
religion and, therefore, contains a guarantee for ritual and observations,
ceremonies and modes of worship, which are the integral parts of religion.
UCC is not opposed to secularism or will not violate Article 25 and 26. Article
44 is based on the concept that there is no necessary connection between
religion and personal law in a civilised society. Marriage, succession and like
matters are of secular nature and, therefore, law can regulate them. No religion
permits deliberate distortion. The UCC will not and shall not result in
interference of one's religious beliefs relating, mainly to maintenance,
succession and inheritance. This means that under the UCC a Hindu will not be
compelled to perform a nikah or a Muslim be forced to carry out saptapadi. But
in matters of inheritance, right to property, maintenance and succession, there
will be a common law.

Justice Khare, in the recent case said

"It is no matter of doubt that marriage, succession and the like matters of
secular character cannot be brought within the guarantee enshrined under
Articles 25 and 26 of the Constitution."
The Chief Justice also cautioned that any legislations which brought succession
and like matters of secular character within the ambit of Articles 25 and 26 is a
suspect legislation. Article 25 confers right to practice and profess religion,
while Article 44 divests religion from social relations and personal law.

Justice R.M. Sahai summarized that "Ours is a secular democratic republic.

Freedom of religion is the core of our culture. Even the slightest of
deviation shakes the social fibre. But religious practices, violative of
human rights and dignity and sacerdotal suffocation of essentially civil
and material freedoms are not autonomy but oppression. Therefore, a
unified code is imperative, both, for protection of the oppressed and for
promotion of national unity and solidarity."

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Codification:
The biggest obstacle in implementing the UCC, apart from obtaining a
consensus, is the drafting. There is a lot of literature churned out on UCC but
there is no model law drafted. Many think that under the guise of UCC, the
Hindu law will be imposed on all. The possibility of UCC being only a
repackaged Hindu law was ruled out by Prime Minister Atal Bihari
Vajpayee when he said that there will be a new code based on gender
equality and comprising the best elements in all the personal laws.
The UCC should carve a balance between protection of fundamental rights and
religious dogmas of individuals. It should be a code, which is just and proper
according to a man of ordinary prudence, without any bias with regards to
religious or political considerations.
Here is an overview of the essentials of the UCC:
Marriage and divorce:
The personal laws of each religion contain different essentials of a valid
marriage. The new code should have the basic essentials of valid marriage
which shall include:
(i) The new code should impose monogamy banning multiple marriages
under any religion. Polygamy discriminates against the women and
violates their basic human rights. Thus, monogamy should be imposed, not
because it is the Hindu law, but because it adheres to Article 21 of the
Constitution [15] and basic human values.
(ii) The minimum age limit for a male should be 21 years and for a female
should be 18 years. This would help in curbing child marriages. Punishment
should be prescribed for any person violating this provision. Also,
punishment for other persons involved in such an act, like the relatives,
should be prescribed which would have a deterrent effect on the society.
(iii) Registration of marriage should be made compulsory. A valid marriage
will be said to have solemnized when the man and the woman sign their
declaration of eligibility before a registrar. This will do away with all the
confusion regarding the validity of the marriage.
(iv) The grounds and procedure for divorce should be specifically laid
down. The grounds enumerated in the code should be reasonable and the
procedure prescribed should be according to the principles of natural justice.
Also, there should be a provision for divorce by mutual consent.

Succession and Inheritance:

This area throws up even more intractable problems. In Hindu law, there is a
distinction between a joint family property and self acquired property which
is not so under the Muslim law. The Hindu Undivided Family (HUF), formed
under the Hindu law, run businesses and own agricultural lands. Under the
UCC, this institution of HUF, peculiar to the Hindus, has to be abolished.
There are also fetters imposed on the extent to which one can bequeath
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property by will under the Muslim law. Considering all these, the UCC
should include:
(i) Equal shares to son and daughter from the property of the father,
whether
self acquired or joint family property. There should be no discrimination based
on sex in the matters of inheritance. The provisions of the Hindu Succession
(Maharashtra Amendment) Act, 1994 can be taken as guiding principles
wherein the daughter of a coparcener shall by birth become the coparcener in
her own right in the same manner as a son and have the same rights in the
coparcenary property as she would have had if she had been a son, inclusive
the right to claim by survivorship and shall be subject to same liabilities and
disabilities as the son.
(ii) Provisions for inheritance of the property of mother, which she has self
acquired or acquired through her father or relatives.
(iii) The provisions relating to will should be in consonance with the
principles of equity. There should be no limitations imposed on the extent
to which the property can be bequeathed, the persons to whom such
property can be bequeath and the donation of the property by will for
religious and charitable purpose.
(iv) The essentials of valid will, the procedure for registration and execution
of the will should be provided for.
(v) Provisions for gifts should not contain any limitations, though essential
of valid gift and gift deed should be specified.

Plaintenance: The maintenance laws for the Hindus and Muslims are 'very
different. Apart from personal laws, a non-Muslim woman can claim
maintenance under Section 125 of Code of Criminal Procedure. A Muslim
woman can claim maintenance under the Muslim Women (Right to
Protection on Divorce) Act, 1986. Apart from maintenance of wife, there are
also provisions for maintenance of mother, father, son and unmarried
daughter under the Hindu law. The UCC should contain the following with
regards to maintenance:
(i) A husband should maintain the wife during the marriage and also after
they have divorced till the wife remarries.
(ii) The amount of alimony should be decided on basis of the income of the
husband, the status and the lifestyle of the wife.
(iii) The son and daughter should be equally responsible to maintain the
parents. The reason for this being that if she claims equal share of the
property of her parents, she should share the duty to maintain her parents
equally.
(iv) The parents should maintain their children - son till he is capable of
earning on his own and daughter, till she gets married.

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Thus based on these fundamental principles, an unbiased and fair UCC can be
framed which will be in consonance with the Constitution.

Working of UCC
Some legal experts argue that progressive law is welcomed but a suitable
atmosphere must be created in which all sections feel secure enough to sit
together and cull out the most progressive of their personal laws. But this
can be answered by an example of Hindu law. When the Hindu Code Bill,
which covers Buddhist, Sikhs, Jams as well as different religious
denominations of Hindus, was notified, there was a lot of protest. And the
then Law Minister, Dr. Ambedkar, had said that for India's unity, the
country needs a codified law. In a similar fashion, the UCC can be
implemented, which will cover all the religions, whether major or minor,
practiced in India and any person who comes to India has to abide by the
Code.
Not many know that a UCC exists in the small state of Goa accepted by all
communities. The Goa Civil Code collectively called Family Laws, was
framed and enforced by the Portuguese colonial rulers through various
legislations in the 19th and 20th centuries. After the liberation of Goa in
1961, the Indian State scrapped all the colonial laws and extended the
central laws to the territory but made the exception of retaining the Family
Laws because all the communities in Goa wanted it. The most significant
provision in this law is the pre nuptial Public Deed regarding the disposal
of immovable and movable property in the event of divorce or death.
During matrimony, both parents have a common right over the estate,
buton dissolution, the property has to be divided equally; son and
daughters have the equal right on the property. As the procedure involves
compulsory registration of marriage, this effectively checks child and
bigamous marriage.
The philosophy behind the Portuguese Civil Code was to strengthen the
family as the backbone of society by inculcating a spirit of tolerance
between husband and wife and providing for inbuilt safeguard against
injustice by one spouse against the other.
Commenting that the dream of a UCC in the country finds its realisation in
Goa, former Chief Justice of India Y.V. Chandrachud had once expressed hope
that it would one day "awaken the rest of bigoted India."

Conclusion:
The section of the nation against the implementation of UCC contends that in
ideal times, in an ideal State, a UCC would be an ideal safeguard of citizens'
rights. But India has moved much further from ideal than when the
Constitution was written 50 years ago.
But to conclude, I would like to say that citizens belonging to different
religions and denominations follow different property and matrimonial

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laws which is not only an affront to the nation's unity, but also makes one
wonder whether we are a sovereign secular republic or a loose
confederation of feudal states, where people live at the whims and fancies
of mullahs, bishops and pundits.

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